Miranda's Toast

In a 5-4 decision (how surprising), the Supreme Court has effectively eviscerated your Miranda rights:

In Berghuis v. Thompkins, the decision announced today, the Court ruled 5-4 that a suspect has to speak in order to assert the right to remain silent. Van Chester Thompkins was given his Miranda warnings and remained quiet for almost 3 hours. During that time, officers continued the interrogation and Thompkins eventually made an admission. A federal court found that he had asserted his right to remain silent by actually remaining silent, and that officers should have ended the questioning. The Supreme Court reversed.

The majority said that if officers give Miranda warnings to a suspect, they may begin questioning and continue to question unless the person clearly and unambiguously says he wants to remain silent or wants a lawyer. Police do not have to expressly ask a suspect to waive their rights. If the person shows incredible stamina--like Thompkins--and manages to remain silent through hours of intense interrogation, he will have "waived" his rights if he eventually caves in to pressure.

And the Court has placed a substantial burden on suspects to invoke their rights with great precision. A number of lower courts applying the clear and unambiguous standard have been quite demanding, finding that statements such as "I think it's about time for me to stop talking" and "I think I would like to talk to a lawyer" are not clear invocations of the right to remain silent or the right to counsel.

The Court's opinion is the most important Miranda decision in a decade. The ruling is breathtaking even to those, like me, who believe that Miranda's safeguards were already eroded. The Court has formally transformed Miranda from a rule aimed at protecting suspects to one that protects police. Miranda's safeguards for suspects are now mostly symbolic. So long as officers give warnings, their interrogation practices will be largely immune from any legal challenge. As the justices have noted in other cases, if warnings are given and a statement is obtained, it is very difficult for a defendant to contend that his admissions were coerced.

I'd make a crack about "keeping your powder dry", but as Weisselberg at Huffpo noted, Kagan was all over this thing.

Makes no difference if it's a Democrat or a Republican. Your rights are still being carved away with a chainsaw.