Anthony Kennedy, SCOTUS

Right to Remain Silent Doesn’t Cover Remaining Silent

If you can only name one Supreme Court Justice, let’s hope that it’s Anthony Kennedy. It’s his world now, we’re all just along for the ride.

Today’s big Supreme Court ruling was the case of Berghuis v. Thompkins. At issue was whether a suspect’s silence constituted a waiver of his right to remain silent.

Yes, you read that correctly. There was actually an open question as to whether remaining silent waives your right to do so. More importantly, it does! One must speak in order to be protected by a right guaranteed to you in the Constitution.

Justice Kennedy wrote the opinion for the 5-4 majority…

To be clear, we’re not talking about a momentary silence here — it’s not like the guy stared at his shoes for twenty minutes before spilling the beans. We’re talking about a three hour interrogation. The WSJ Law Blog reports:

The ruling comes in a case where a suspect remained mostly silent for a three-hour police interrogation before implicating himself in a murder. He appealed his conviction, saying he invoked his Miranda right to remain silent by remaining silent.

The 5-4 ruling fell on predictable lines, with Chief Justice Roberts and Justices Scalia, Alito and Thomas joining Justice Kennedy’s majority opinion. Justice Sotomayor wrote a dissent, which was joined by Justices Ginsburg, Breyer and Stevens.

And we’re not talking about some made for T.V. confession engineered by Kyra Sedgwick. The ABA Journal tells us:

The court ruled against Van Chester Thompkins, who said little during a police murder interrogation until an officer asked whether he prayed for forgiveness for “shooting that boy down.” Thompkins responded, “Yes.”

You see, in Kennedy’s world, “persistent silence” for three hours is ambiguous and potentially confusing to police officers. From the opinion:

There is good reason to require an accused who wants to invoke his or her right to remain silent to do so unambiguously. A requirement of an unambiguous invocation of Miranda rights results in an objective inquiry that “avoid[s] difficulties of proof and . . . provide[s] guidance to officers” on how to proceed in the face of ambiguity. If an ambiguous act, omission, or statement could require police to end the interrogation, police would be required to make difficult decisions about an accused’s unclear intent and face the consequence of suppression “if they guess wrong.”

Hmm… am I criticizing Kennedy’s opinion or not? Well, I haven’t made an unambiguous statement either way so it must be really confusing for you readers. Sorry about that, but feel free to take a freaking guess.

Everybody can get themselves into a tizzy about the Kagan nomination, just like the Sotomayor nomination last year. But make no mistake, the most important Justice right now is Kennedy — there’s nothing ambiguous about that.

High Court: To Remain Silent, You Must Speak [WSJ Law Blog]
Supreme Court Rules Suspect’s Silence Not a Miranda Waiver [ABA Journal]

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