The social sciences are a great place to be a cynic. Acquire even a passing understanding of the cumulative research in political science, sociology, psychology (I know, they resist being lumped into this group), or economics and it quickly leads to the conclusion that humanity is unfit to feed and clothe itself let alone govern or live in society with one another. However low your expectations of the "average American" may be, spend a few hours with the literature of political science and sociology and recognize how generous you were being. Americans know next to nothing, believe absolute nonsense, and lack any interest in social, political, and economic issues. There is nothing more trite or true than stating, "Americans are idiots." It isn't even controversial anymore.
So the question, and a particularly problematic one for the courts, is just what we can reasonably expect Americans to understand about the law and their rights.
Last week the Supreme Court issued a split (5-4) and controversial decision in Berghuis v. Thompkins, allegedly weakening the 5th Amendment right against self-incrimination. As is often the case with Supreme Court controversies, the reaction focuses on the decision and ignores the facts of the underlying case. Briefly, an individual was arrested and read his Miranda rights but he made no statement either invoking or waiving them. That is, he didn't say much of anything. For over 2.5 hours police asked him questions about a murder while he said nothing, and after 3 hours he made a self-incriminating statement.
Statements made after invoking the right to remain silent are inadmissible. The defendant's attorney claimed that he invoked his rights by remaining silent for nearly 3 hours. The lower courts agreed, but the 5-4 majority on the SC disagreed. The majority bloc (Clarence Thomas, Scalia, Alito, Roberts, and Kennedy) is not one that I often side with, but in this instance I see the logic of their decision, even though the implications are troubling.
The basic question is a thorny one: what can and should police assume? Now, we know that I am not a friend of American police tactics and what we mockingly call a justice system. But this fuels my belief that asking police to assume anything is a dangerous enterprise. On the one hand, the dissenters on the Court and liberal groups are arguing that 3 hours of silence should be interpreted as invoking the right to remain silent. On the other, the majority argued that responding to any questions should be interpreted as waiving the right.
Much of the reaction has echoed Sotomayor's dissent in arguing that:
A) The burden should be on the police to prove that the rights were waived, not on the defendant to prove that they were invoked. As the original Miranda decision states, a "heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel."
B) Our rights have been weakened because police can hypothetically pepper a silent person with questions for hours until he or she finally responds. I agree with the first part, but the second only holds if we assume that Americans have not the slightest understanding of how their rights work. That might not be a bad assumption, of course.
A person need only say "I wish to remain silent" or "I don't want to say anything" and everything beyond that point becomes inadmissible in all but a few unique situations. The real question at hand here, then, is whether it is reasonable to expect that an adult under arrest should know this. Can we expect them to know that they should affirmatively state their invocation of the right? Interrogations would be so much less effective at extracting confessions if people simply remembered what any half-decent lawyer will tell you: don't say anything and ask for a lawyer. That people don't understand this is the Cops' Best Friend. But how far do police have to go to make people understand it? After they state "You have the right to remain silent. Anything you choose to say can be used against you at trial." do they need to take out finger puppets and crayons until the point is clear?
As for silence being interpreted as invoking the 5th Amendment, that too is very problematic for the dissenters' argument. What about the rest of Miranda? Does silence also invoke the right to have an attorney present? Ideally we want police doing as little "interpretation" as possible. The fewer points of law they have to think about, the better. I for one don't want them trying to interpret the meaning of silence. ANY statement, even as simple as "I have nothing to say, asshole", will invoke the 5th. Furthermore, the suspect in this case was given the "extended" Miranda and was informed that he could choose to invoke his rights at any time before, after, or during questioning.
I'm a pretty good civil libertarian and I recognize that most people know very little about their rights under arrest. And the Court has been cognizant of that over the years with Miranda, ruling that a Miranda warning is only valid if the suspect affirmatively indicates that he understands his rights and that it must be read in a language understood by the suspect. Is it too much to ask people to state their intent to invoke their rights after those rights have been explained to them? Sadly, the answer is probably yes, so I sympathize with Sotomayor's argument about the burden resting on the state to prove that the right was waived. That said, it isn't hard to see the majority's point that there is a limit to what we should expect of the police. After informing suspects of their rights and explicitly asking them (as is near-universal in American law enforcement) ""Do you understand each of these rights? Understanding each of these rights, do you now wish to speak to the police without a lawyer being present?" I fail to see what more can reasonably be done to make individuals understand that saying "No" invokes legal rights that protect them.