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Tuesday, June 1, 2010

The Right to Remain Silent

The classic right to remain silent under the Fifth Amendment has been part of our culture -- in addition to our jurisprudence -- for decades thanks to Miranda v. Arizona.

News reports -- This morning the Supreme Court narrowed Miranda. See its decision in Berghuis v. Thompson.  Now, you cannot invoke your right to remain silent by remaining silent. You must speak it. In other words, you must declare your assertion of the right.

I see all sorts of problems. Your declaration of the right is dependent, after all, on the fidelity of the people who have you in custody to follow the rules. This equates to: trust us, we'll report that you invoked your right.

Just like the age-old question -- if a tree falls in the forest and no one hears it, did a tree really fall? -- this decision is ripe for abuse by police and others, who will be free to negate your Miranda rights by simply failing to report, acknowledge or admit that you've voiced your assertion of the right. 

I think about the person who screams as loudly as he can, while being blithely ignored.

Now that your Miranda right may now be only as good as your captor's willigness to acknowledge your right, you now have the functional equivalent of no right, since a right by definition should not depend on the actions or benevolence of anyone else. This ruling today changes the equation, for the worse.

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