Thursday, June 10, 2010

You Have The Right To Incriminate Yourself

The Constitution stands firmly against the predations of inquisitors and investigators who plan to sweat, bleed, torture, threaten or otherwise coerce a criminal defendant into confessing to a crime he may or may not have committed. Anyone who has ever watched a TV lawyer show knows that basic fact. But do you know what that protection really means?

Consider the actual words of the Constitution: "nor shall [he] be compelled in any criminal case to be a witness against himself." "Taking the Fifth" applies both to criminal testimony at trial as well as to all police interrogations. It's up to the suspect/defendant to make the decision whether to talk or not. Most lawyers will advise even the most innocent client to button his lip until the lawyer has figured out where the charges are actually going and what they're based on.

The defining case for over four decades has been Miranda v Arizona (1966). Most laymen think that Miranda granted certain new rights to criminal defendants, but in fact it merely restated rights already in existence, including the right to remain silent, and a [then] recent court interpretation of the Sixth Amendment in Gideon v Wainwright (1963) which provided an attorney for indigent suspects at no cost at all stages of the proceedings including interrogation. The US Supreme Court decided in Miranda that there were sufficient numbers of potential criminal defendants in the general population who might not know these two rights that it required they be advised of them prior to any questioning.

After a few false starts, police nationwide settled on the basic wording of the Court which was put into a standardized format to be read to each suspect prior to interrogation. Today, this is commonly known as "reading the defendant his Miranda rights." For safety's sake, most police officers carry a laminated card with them to be read to the suspect immediately upon arrest. Liberal courts over the years have done somersaults to find that in some way those Miranda rights were violated, releasing thousands of criminals back into society to continue their criminal careers.

After one criminal was asked "do you understand these rights I've read to you?" the criminal replied, "yes, and I want to talk to my mom." His subsequent conviction was reversed when the police kept questioning him and the court decided that "I want my mommy" meant the same thing as "I want a lawyer." That's only one out of thousands of examples of liberal law-twisting.

Miranda is not a law or a provision of the Constitution, it is merely a rule defining the minimum standards that must be observed during an arrest in order to avoid later running afoul of the law or the Constitution. Leftist lawyers and their clients, along with the assistance of liberal jurists sitting on high courts, have raised Miranda to some sort of holy writ.

On June 1, the US Supreme Court took a small bite out of the Miranda Rule apple. Liberals are nearly hysterical in their denunciation of this assault on the right of criminals to be set free on silly technicalities. Miranda and its progeny created a judicial atmosphere in which any police interrogation was considered inherently coercive, and therefore worthy of dismissal at trial. In fact, Red Sonia Sotomayor used the words "inherently coercive" in her rambling dissent.

The case is Berghuis v Thompkins. Van Chester Thompkins was arrested for murder. He was taken to the police station, where for the second time he was read his Miranda rights. He was asked to sign a form acknowledging that he understood his rights as read to him, but refused to sign. He never waived his Miranda rights, but it is also important to note that he also did not invoke them. He never said he was refusing to answer questions, nor did he ask to speak with an attorney. The police continued to question him, and he continued to avoid answering most, but not all, of those questions. Finally, after nearly three hours of this cat and mouse game, one interrogator asked him if he believed in God, and whether he had asked God to forgive him for his crime. Thompkins answered "yes" to both questions.

Following the primrose path that the ACLU and the courts have led us down for forty-four years, the obvious legal conclusion would be that the confession must be suppressed even though the Constitution says nothing of the kind. The question is not whether the police violated a rule, but rather whether they violated this defendant's Constitutional right to remain silent. And at long last, the Supreme Court found the police had not done so.

Three hours is a long time when in custody, but it is not excessive nor was the defendant deprived of any necessities, placed under a third-degree lamp, or forced into a confession. The police had asked him multiple questions over that period of time, most of which he simply ignored or failed to answer. Some he did answer, such as "would you like a peppermint?" He responded to the question "are you comfortable?" by saying, "no--the chair is uncomfortable." At any point that he had said, "I will not talk to you," or "I want a lawyer," the questioning would have to have stopped.

The Court did not go so far as to say that breaking one's silence is an automatic waiver of Miranda rights. But what it did say is that the defendant has the right to remain silent or not, and that whether an interrogation rises to the level of coercion or denial of Constitutional rights is an issue which depends on all the surrounding facts and circumstances.

The left is already crying that this ruling destroys the Miranda rule, or guts it, or provides a roadmap around it, or seriously undermines it. Pure hysteria. This ruling simply brings common sense back into the formula. At any point, the suspect can stop the questioning by invoking his right to remain silent and demanding an attorney. Or he can waive those rights, and everything he says can and will be used against him. Somewhere in between there is an area governed not by a rigid rule providing cover for every criminal who mistakenly confesses his crime, but rather by what lawyers call "exigent circumstances."

Judges and appellate courts will now be able to look at the voluntary statements and determine whether they were truly voluntary. Is three hours coercive? The court said "no." How about six hours? Maybe. Twelve hours without a break, no opportunity to rest or use the bathroom, and without food or drink, probably. It is key to the issue to distinguish between "understanding" one's rights, and "exercising" those rights. This defendant read but refused to sign a statement that he understood his rights, but allowed the police to continue asking questions without doing anything that would tell the police that he was exercising those rights. Tough luck. He's not getting off on a technical twisting of a rule that was designed solely to prevent coercion, not to prevent further questioning.

Except in the case of clear violations of Constitutional rights, liberty and law must always be weighed in the balance between absolute freedom and ordered liberty. The timing of the case is fortuitous. Even lefty lawyer Attorney General Eric Holder has recognized the need for a lack of rigidity in questioning terror suspects. He has gone so far as to request legislation defining a "public safety" exception to the Miranda rule. Thompkins provides him with a Supreme Court decision which says not all situations are alike and that one rule doesn't fit all.

And when you hear those liberals using that new favorite word of theirs, "unprecedented," you may freely disabuse them of that nonsense by pointing out the following. Until the Warren Court suddenly discovered the Miranda Rule hidden between the lines of the Constitution, the rule had always been that confessions need not be suppressed if they were "voluntary" under the circumstances. Magical words read from a laminated card had replaced that simple concept until the current decision. Miranda warnings now become the guideline for police officers that they should always have had, rather than a rigid rule that rings down the curtain of questioning at an arbitrary and fixed time.


Tennessee Jed said...

Hawk - I have always been captivated by the law. Possibly, I may have mentioned that I had planned on a legal career and had been accepted at two law schools, but had to give it up due to onset of extreme severe Crohn's.

The point is, I've always loved reading your legal posts and this is no exception. It seems to me the Supreme Court ruling is sane, logical and fair which is generally the way our legal system works.

Joel Farnham said...


Weren't Miranda rights CREATED by the Warren Court?

LL said...

Perhaps a post in the future on what constitutes a CUSTODIAL interrogation. People (and sometimes the lower courts) often take their cues from television law rather than THE law.

Unless somebody is in custody, Miranda does not apply. I know that a Miranda advisement needs to be given at the point when an officer decides that the person interrogated "is no longer free to leave".

There is a vast difference between Miranda - impeached testimony from statements given outside miranda, and what TV law demonstrates.

Unknown said...

Tennessee: Thanks for the pat on the back. I wasn't aware you had planned a career in the law at one time. Though I would never wish something like Crohn's on my worst enemy, at least it kept you in a legitimate line of work. LOL

This was one case which drew the Court back to a common sense approach to dealing with interrogation. Miranda has for too long been a magical incantantion--like "abracadabra." It had come to bear little relationship to the pursuit of the concept of the rule of law. The perfect is the enemy of the good. And like trials, the Constitution guarantees a fair interrogation, not a perfect one.

AndrewPrice said...

I know the left is hating this one, but frankly it makes total sense. All it really does is shift the burden to the defendant to prove that they actually invoked their rights rather than making the police disprove that the guy invoked his rights. Big deal. In fact, in most places judges were basically doing this already by simply trusting the testimony of the cops that he waived his rights.

Unknown said...

Joel: Miranda actually created nothing that was not already contained in the Constitution or outlined in earlier Court decisions. It merely clarified what was required minimally to ensure that an interrogation was not coercive and complied with rights already in existence since the Bill of Rights was added.

It was the long line of liberal decisions that followed Miranda that institutionalized the "Miranda Rule" that has caused all the mischief. But it was indeed the Warren Court which ruled in the original case.

The only new thing about Miranda was the formal incorporation of Gideon v Wainwright, which for the first time required that police officers inform a suspect that he had the right to have counsel present at all stages of "the proceedings," including interrogation.

Unknown said...

Dinah: Thanks for the list, but I intend to commit all my crimes in Southern California now.

Unknown said...

LL: You are absolutely right about the difference between a full investigatory interrogation and a simple custodial interrogation. That distinction has been the source of hundreds of appeals. The rule of thumb is that the police officers must recognize that when the detainee has moved from "person of interest" to "suspect," or "the focus of the investigation," Miranda attaches. That is a line which is difficult for the most sophisticated of interrogators to locate.

Notawonk said...

the left remind me of george cosantza's bizarro world:

"It became very clear to me sitting out there today that every decision I've made in my entire life has been wrong. My life is the complete opposite of everything I want it to be. Every instinct I have, in every aspect of life, be it something to wear, something to eat - it's all been wrong."

Unknown said...

Andrew: And the beauty of the decision is that it doesn't give the liberals the red meat they really wanted. Though several noted liberal law professors have claimed that the case says a defendant must strongly invoke or waive his rights verbally, the case actually says nothing of the kind. Instead, it uses the balancing test that liberals love unless it works for law enforcement.

One of the major problems which evolved over the years in the centers of liberalism was that unlike most judges in the rest of the nation, urban judges frequently made it clear that they would rarely trust the word of a veteran police officer over that of a common thug with a lengthy arrest record. This case does go a long way toward clarifying that burden of proof, requiring a full evidentiary hearing when the constitutionality of the interrogation is called into question. And as you said, I think the burden has shifted from the presumption of "no waiver," to the presumption of "no invocation."

Unknown said...

Patti: I hope that the spirit of Earl Warren and his living Constitution cohorts are listening to Costanza, wherever they are.

AndrewPrice said...

Lawhawk, Agreed. I think it's funny that liberals need to spin these things into "end of the world" scenarios. It tells you something about their abilities as attorneys if they can't see reality and instead see the world through politicized fantasy goggles.

BevfromNYC said...

Does this mean that a clever criminal who commits a murder and immediately confesses with all of the details before being "mirandized" perhaps no longer can just walk away?

Unknown said...

Andrew: That is exactly the problem with legal absolutism. It leaves no room for the human element and circumstances. Justice tempered with mercy should also include justice tempered with common sense.

Unknown said...

Bev: There was always an "excited utterance" exception to the hearsay and self-incrimination provisions. But as you surmised, the "intentionally blurted utterance" will no longer provide cover for criminals who can talk faster than the police officer trying to read the words from the Miranda card.

Unknown said...

LawHawk, So will the police now whip out a card and read them their Thompkins rights?

Unknown said...

CalFed: Yep. "You have the right to shoot your big mouth off, and any lie you tell us can and will be used against you in a court of law. You have the right to an attorney at no cost to you who will provide exactly the services you pay for. You have the right to sing the blues."

StanH said...

Well...glory be Lawhawk! Some sanity creeping into the justice system, and the left …says, it must be quashed. I must say the Roberts’ court has been a pleasant conservative, or dare I say Constitutionalist surprise, that pays some attention to original intent. Barry’s in full assault with Red Sonya, and Kagan(?) …installing apparatchiks to the highest court of the land.

On rulings like Miranda, and Roe, you always hear the Senators question about “stare decisis” respecting bad laws because of precedents. Is the Supreme Court the final arbiter on this, or could congress pass a law abolishing Miranda?

Individualist said...


Great Post! Always wondered how this worked. Exactly how much weight does a confession pull in court. What I mean to say is can a simple confession by itself in most cases provide a conviction or is it usually just another nail in the coffin so to speak.

The other thing is how does this affect the common law and order meme where the suspect gives up the location of the body but because he says he did not hear his Miranda warning then all eveidence from the crime scene is now inadmissable unless they can prove they would have found it anyway without the comments.

Will there be reasonablity applied to things like that.

Unknown said...

Individualist: I could write an entire treatise just on those two questions.

Confessions carry as much weight as the believability of the confession. Once you've gotten past the lawyer's objections to the admissibility of the confession, the same things apply to the testimony concerning the confession as to any other evidence and/or testimony. If the jury doesn't believe it, then the confession didn't matter.

As for your example, it's also a matter of evidence. If there is a substantial probability that the location of the body would have been figured out without a coerced confession, then the evidence will come in anyway (New York calls it "inevitable discovery"). If not, then the confession cannot be used to link the defendant to the crime or to the body (fruit of the poisonous tree). What Thompkins did is raise the burden on the defendant to prove that his confession was not voluntary and that he had no idea he had the right to remain silent. That's going to be harder to do now.

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