GREAT EXPECTATIONS

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.

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24 Responses to “GREAT EXPECTATIONS”

  1. HoosierPoli Says:

    If he really wanted to invoke his right to remain silent, I think he would have continued to remain silent.

    Nothing to get worked up about, but I'm still pretty sick of these split decisions.

  2. anotherbozo Says:

    Loved the explicitness of the first paragraph, Ed. We've all known rich kids whose privileges are in no way justified by their inherent smarts, talents, or even looks. It occurs to me that that's the way most of the rest of the world views us. We were born with a wealth of natural resources, a system of jurisprudence and Bill of Rights that was put in place to protect the common citizen's enjoyment of same. Just as the dumb rich kid can soon be separated from his wealth, the sharks aka international corporations and emerging world powers are expertly separating us from ours.

    Yeah, I know this is off-topic.

    Are your college lectures as strong as these blogs? If our national dysfunction can in any way be stemmed by self-awareness, I'd love to finance your 50-state tour of stadiums and lecture halls to spread the news in blunt words even our retarded citizenry can understand. But maybe the truth is obvious, and it's only access that's hard to come by.

  3. party with tina Says:

    These split decision seems like an ideology vs logic decision, where the moderate chose the right answer. If people are really worried about this decision, someone ought to write a law making the miranda readings more detailed.

  4. Hudson Says:

    Two points I haven't seen anyone address on this topic:

    1. What about someone who doesn't understand the Miranda warning—either through mental deficiency or impairment, meaning they're either too dumb or high to understand it? What about a non-native speaker? Do such persons lose their rights simply because they are not in a state to understand them?

    2. If someone does remain silent after being read their rights, shouldn't that put an end to the police badgering (and in some cases attempting to goad them) into saying something? This is where I diverge from Ed's analysis: Investigators who continue trying to cadge an answer out of someone for three hours—whether through intimidation or instigation or false promises or whatever—when that person is clearly doing their best to remain silent is not respecting the spirit of Miranda.

    A simpler approach would be: Don't question anyone until their lawyer or public defender is present, unless they insist on talking.

  5. Hudson Says:

    [Is not respecting >>> are not respecting. And apologies for the run-on/convoluted sentence structure]

  6. Ed Says:

    Hudson, there are miles of case law on comprehension and Miranda. The courts have been consistent: it must be given in a language that the suspect understands and the suspect must do something to indicate that he or she understands. Any statements prior to the suspect being informed of Miranda in a language he or she understands is inadmissible, and the courts recognize the class of people who simply are not able to understand Miranda and police are instructed (although compliance is probably spotty) not to question people with obvious mental incapacities until counsel is appointed. The documentary "My Brother's Keeper" deals with this issue in great detail.

    Of course someone can say "Yes, I understand" and not really understand, but as much as I hate to say it, we have to give the police a puncher's chance here. After they have informed someone of their rights and that person states "I understand," I am not sure how they are supposed to operate under the assumption that he or she does not understand that a lawyer can be requested and silence is an option.

  7. Townsend Harris Says:

    I've spent nearly two decades using my office hours for, in part, instructing my Brooklyn black male students how to (first) cooperate without getting shot and (second) not incriminate themselves. Despite my best efforts, I expect always to have attention-deficit dummies at risk.

  8. truth=freedom Says:

    Thanks for saying it, Ed. Now I don't have to. To me, this is all about education. From 1st grade up kids should be told that if they want to be respected by police they should give only one answer to any question the police ask once under arrest: I have nothing to say until my lawyer is present. For that matter, before you're under arrest you should give one (slightly different) answer to virtually any question asked of you by the police: Am I free to go, or am I under arrest?

    Of course, this approach to education gives conservatives fits because they don't think any one should be educated by the education system to be anything other than the bestest buddy of the police. You can't do that *and* remain silent when questioned.

  9. Hazy Davy Says:

    Wait, wait.
    Did anotherbozo just offer to finance "Ed travels around and talks sh**"? 'cause if he did, and if he understood what that meant, and if he actually has the resources to do it, we ought to probe it further.

    To my mind, the challenge with "silence after Miranda" = invoking right to remain silent is this: for how long must one remain silent to have implicitly invoked it?
    I suspect there are a lot of self-incrimination which require interrogation; they don't give up the goods immediately. To that end, I'd assume the police are trained to put up with it for 3 hours.

    (I am torn, however. To me, it's obvious that someone who said nary a word under 3 hours of questioning was choosing to remain silent. It's not that he was being evasive…he was being *silent*. Still, "I do not wish to say anything with my lawyer present" seems pretty straightforward to say.)

  10. Nick Says:

    Personally, I think if you manage to remain silent for two and a half hours, and then at hour three you go "Fine! I fucking killed him!", it's really your own fault. Ask for a lawyer, or keep quiet.

    As for the argument that he implicitly invoked his right to remain silent, the flip side of that is that if he did so, he understood that right and chose to speak anyway. He did not ask for a lawyer, he did not say that questioning needed to stop until he had a lawyer present, he indicated his understanding of the right, and eventually (after the cops continued to interrogate him since he had not invoked his right to an attorney) he waived that right by speaking.

    The fact that this guy was an idiot doesn't mean his rights were violated.

  11. bb in GA Says:

    Conservatives and Libertarians ain't necessarily in love w/ the long arm of the Law.

    As a practical matter I always advised my kids to keep contact to a minimum.

    My youngest, who manages a retail auto parts store, had two county detectives question him while he was on the clock in front of customers and other employees (very unprofessional) about receiving stolen property. Nothing like a little slander to brighten up your day.

    He was more polite than I would have been. He denied the allegations, denied knowledge of the accuser(s), and gave them his cell phone number so they could check the records and said no more. They continued for a few more minutes in the face of his silence playing a variation of Good Cop/Bad Cop before leaving with the usual threats to return and not be as kind.

    My curmudgeonly response would have likely gotten me arrested on the spot.

    //bb

  12. Bugboy Says:

    I've spent my entire professional career serving the public delivering mosquito control services. One common thread I see is this: PRIDE.

    The general public never wants to admit that are ignorant of anything, nor do they listen to you when they are not in a receptive state to learn, ie. calling to request services they have a pre-conceived notion what those services consist of. In my case they are constantly bombarded with marketing that spraying bugs is how you get rid of them so a typical call consists of this:

    caller: Hello, I am having mosquitoes, can you send the truck out or better yet get the helicopter up? (this is usually during the off season when we get one call out of the blue and we have a pretty good idea it's container mosquitoes)
    me: Hi, can you give me your location? Our traps are still showing low counts across the county, it is still early in the season/its dry as a bone/hot as hell/etc. so we have yet to see significant mosquitoes. Our field staff will be happy to investigate your mosquito problem to solve it. Some mosquitoes like to live in containers like bird baths, buckets and tires, and we can help find those sources and remove them, but spraying is ineffective on them.
    caller: Ok, (gives address) So when are you getting the helicopter up?
    me: (pulls hair out)

    True. Story.

    These are the same people that rail against paying their taxes, I really have come to believe. I don't know where this comes from but it sickens me to see people so unwilling to use their brains.

  13. David Says:

    I categorically agree. Laws are not about games of nuance – they are about spirit and letter (spirit primarily but letter in practice due to logistics). Just as I despise ticky tack nonsense from law enforcement, I despise it from the defense bar as well. Was he denied fundamental amenities (bathroom, water) should he fail to answer? Did he ask for an attorney and the cops fail to provide him with a phone? Then STFU.

  14. party with tina Says:

    If you really want to talk about how bad America has gotten lately, think about this. Some guy stayed in an interview for 3 hours without saying anything, such as asking for a lawyer, or asking to LEAVE(!?!?!?), suddenly ADMITS to the crime, and is convicted. This shit proceeds to the supreme court of ALL the nation.

    Opinion does not read "Lol, seriously?". We're fucked.

  15. Ed Says:

    He didn't freely admit it, he just got caught in a line of questioning intended to elicit a confession. Why he started participating is beyond me.

    It raises a legitimate question about invoking versus waiving the 5th, so I'm not surprised the Court took it.

  16. party with tina Says:

    i wrote that more as a joke than a legitimate complaint, your explanation is obviously more reasonable.

  17. DSchrute in CO Says:

    I am an attorney and one thing that I've learned is to never underestimate just how stupid people are. The ignorance of the public at large probably has a lot to do with the abyssmal levels of education we have in this country.

    http://chronicle.com/section/Facts-Figures/58/

  18. party with tina Says:

    I disagree, people have different mental aptitudes, there are plenty of intelligent people who do poorly in school, and also some ignorant people who do well.

  19. Nunya Says:

    My father spent 30 years as an LA detective. When I was about 15 I decided that I might want to follow in his footsteps. He had the wisdom to know that this wasn't a field he wanted his son to follow him into and drove the point home by bringing me in as a ride-along for 2 weeks during the summer.

    The things I saw were life altering. I had no idea how the criminal subculture lives until this time period and I'm not a fan of the culture but what I brought with me even beyond never wanting to be a part of that world is just how close to it cops become.

    The interrogation of suspects (mind you, this was over 20 years ago) was absolutely unnerving. The well-honed line of questioning would make all but the most hardened criminal beg for their mother. There was no physical violence but the use of threats that seemed absolutely credible to me were enough to convince me that I would do my best to never be in that situation and If i were to demand to speak to an attorney before answering any questions… even if I were completely innocent of the charges.

    I respect the police but I will not cooperate with them. The mindset of a police officer is that of a predator. Without that mindset, you won't last long. Miranda provides an explanation of rights but very few people can withstand three hours of belligerent questioning without a reaction. I consider myself to be a strong person but I am fairly sure if I were guilty of a crime, I couldn't hold out to that kind of interrogation.

    And yes, people are stupid. Most criminals are particularly stupid which is why I expect the burden to always lie with the state and to assume that the people they arrest, while they may claim to understand their rights as they were explained to them, they seldom can correlate that with the results of choosing to waive those rights.

    With the largest per capita incarceration rate in the world, I want to make it as difficult as possible to put more people in jail, myself included.

    There are two phrases to remember when dealing with law enforcement:

    1. I don't authorize any search.
    2. I can't answer any questions without my attorney.

    Other than that, be polite, keep your hands visible during any traffic stop, and never, ever assume that the police are on your side.

  20. GOJ Says:

    This should be required viewing for all US Citizens:

    Why Activists Should Never Talk to the Police or FBI

  21. Matt Says:

    Does simply affirming that you understand your rights as read to you imply an invocation of said rights?

    I ask because, as far as I know, the typical wording of Miranda does not make it clear that you must explicitly invoke the rights (above and beyond simply saying you understand). One could reasonably assume they were acting in their best interest by actually being silent only to crack under hours of badgering and intimidation, all the while not aware of the unspoken requirement to explicitly invoke their rights. Therefore, if simple affirmation of understanding is not sufficient to invoke the rights, I think this ruling is much more troubling than you let on.

  22. Patrick Says:

    I agree with Matt. If they need to tell you your rights, then they need to tell you how to invoke them. Requiring that you say something to invoke your right to remain silent, is confusing and misleading.

    Also, I don't think this is about people being stupid or not knowing their rights. Even people that are well prepared, knowledgeable, and innocent will confess under interrogation. It is just a matter of fact that humans have specific cognitive deficits that an organization with resources can exploit as reliably as clockwork.

    It is extremely scary to read about the practices that are regularly employed in the US during police interrogations:
    http://people.howstuffworks.com/police-interrogation3.htm

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