Ongoing Erosion of the Rights of the Criminally Accused Under Miranda

The United Supreme Court has issued its second opinion this session that has limited the protections afforded by the 1966 landmark decision of Miranda v. Arizona.  That decision, examining police interrogation practices of a criminal defendant, Ernesto Miranda, in a rape and kidnapping investigation, created the so-called “Miranda Rights” that criminal suspects have since enjoyed. The decision gives accused persons the right to be advised of the right to remain silent during police questioning, and to have a lawyer present during questioning, even if they cannot afford one.

Earlier this year, the High Court placed a time limit on an accused’s Miranda Rights, in effect permitting law enforcement officers to re-engage a criminal suspect who has previously invoked protections against self-incrimination and right to counsel.  That opinion, Maryland v. Shatzer, ruled that a defendant’s invocation of his right to remain silent and request for a lawyer expired 14 days after a “break in custody” resulting from a release from police custody.

In this week’s ruling, in Berghuis v. Thompkins, the majority of the Supreme Court held that a suspect who talks to the police, after have been informed of his right to remain silent, must break his silence to tell the police that he is going to remain silent in order to stop an interrogation.  Legal experts believe that the decision gives the police the power to continue to fire questions at a suspect who refuses to talk, in the hope that he will crack under questioning and give them useful information to use against him.

Justice Anthony Kennedy wrote in the majority opinion that “Thompkins did not say that he wanted to remain silent or that he did not want to talk to police.  Had he made either of these simple, unambiguous statements, he would have invoked his ‘right to cut off questioning.’ Here he did neither, so he did not invoke his right to remain silent.”

This opinion seems to have the result of removing protections previously guaranteed to the criminally accused from those who need it most: the criminally naïve and those who are perhaps most likely to be free of criminal wrongdoing, in favor of those who need the protection least: truly criminally responsible individuals, or those with previous experience with the criminal process, who most likely understand how to “game the system.”