Asserting the Right to Remain Silent (Media Fairness)

By , June 1, 2010

While scanning the Google News headlines this morning, I thought something momentous had happened: according to the headlines, the U.S. Supreme Court had limited a suspect’s “right to remain silent” (Berghuis v. Thompkins).

Instead, I quickly recognized that some of the headlines were deceptive, as reporters sought to churn a minor clarification into a major story.

Here are some examples that I don’t think are objective (I’ve underlined wording I think is unfair):

Several commentators, writing before the Supreme Court issued its ruling, described the case as an attempt to “expand” or “clarify” Miranda, which required that before questioning, suspects must be advised of their Constitutional rights (to have an attorney, and not to incriminate themselves), and police must terminate questioning if a suspect invokes those rights.

But when the ruling was announced on June 1, most reporters and editors immediately transformed the “non-expansion” story into a “limitation” or “retreat” story.

There are two reasons why the media may have sought to magnify the ruling’s importance and impact.  First, the dissenting opinion was written by newly-appointed Justice Sotomayor. Second, when the case was briefed and argued, the U.S. government sought the ruling that the majority delivered — and the government was represented by current Solicitor General Elena Kagan, who is now President Obama’s nominee for appointment to the Supreme Court.

I assume that in the next few days, we’ll hear pundits proclaim that this case demonstrates that Ms. Kagan is more moderate (less liberal, more conservative) than Justice Sotomayor, which might make her appointment seem more acceptable to some Senators (and perhaps less acceptable to other Senators).  Undoubtedly, we will also hear some  pundits complain that Obama should withdraw Kagan’s nomination because she’s too conservative, and different pundits will claim that this case was a “smoke screen” intended all along to make Kagan appear more moderate than she “really is.”

In fairness, the “change” and “limitation” language was not the only “angle” that editors seized upon.  Many other articles instead emphasized the apparent contradiction in the court’s ruling that one must “speak up in order to assert the right to remain silent” (for example, the New York Times editorial, “Speaking Up to Stay Silent”).

__________________________

The actual issue in this case was whether a statement made by a suspect during interrogation, after remaining “largely silent” for nearly three hours, could be admitted at his trial, or should be excluded.

Mr. Thompkins was arrested for murder.  During his interrogation, he was advised of his right to remain silent, and he remained “almost completely silent and unresponsive”.  However, “At no point during the interrogation did Thompkins say that he wanted to remain silent, that he did not want to talk with the police, or that he wanted an attorney.”

After nearly three hours of an interrogation best described as a “monologue,” a detective asked Thompkins if he believed in God, and if he prayed; Thompkins answered “yes” to both questions. The detective then asked, “Do you pray to God to forgive you for shooting that boy down?” and the suspect answered “Yes.” Thompkins’ attorneys sought to have this statement excluded, arguing that by remaining mostly silent for nearly three hours, Thompkins had effectively communicated his intent to remain silent, and police should have ended the interview before then.

The “real issue” in the case, I think, was this: after police insisted that Thompkins read a portion of the Miranda rights from a card, and after police read all these rights to him, and after Thompkins refused to sign an acknowledgment that he “had been advised of and understood his rights,” police did not ask him if he expressly waived those rights.

The Supreme Court was presented with an opportunity to clarify the Miranda decision by deciding whether or not police were required to ask that question (and if so, whether they could insist that the defendant reply; or if the defendant did not reply, whether police should infer either a waiver or invocation of that right).

In a 5-4 decision, the Court ruled that police were not required to ask, nor were they required to infer from silence that a suspect was “invoking his right to remain silent,” which would end the interrogation.

In her dissent, Justice Sotomayor wrote:

The Court concludes today that a criminal suspect waives his right to remain silent if, after sitting tacit and uncommunicative through nearly three hours of police interrogation, he utters a few one-word responses. The Court also concludes that a suspect who wishes to guard his right to remain silent against such a finding of “waiver” must, counter-intuitively, speak—and must do so with sufficient precision to satisfy a clear-statement rule that construes ambiguity in favor of the police. Both propositions mark a substantial retreat from the protection against compelled self-incrimination that Miranda v. Arizona, 384 U. S. 436 (1966), has long provided during custodial interrogation.” (Berghuis v. Thompkins).

While I don’t agree with the majority’s decision, I don’t agree with Justice Sotomayor that this case represents a “substantial retreat,” and I don’t think the majority decision will “limit” or “change” existing law, nor will it change police procedure.

Most journalists adopted the dissent’s view that this decision was a significant change from existing law.  I find this a fascinating example of “pack-mentality media distortion.”

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