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Saturday, June 5, 2010

Sotomayor on the Right to Remain Silent

The newest Supreme Court justice, Sonia Sotomayor, deserves credit for boldly standing up for Americans' classic right to remain silent under the Fifth Amendment in her dissent in the recent ruling in Berghuis v. Thompson.   (You can read the decision here; her dissent starts at page 24.)  The Court, in a 5-4 vote, ruled that you cannot invoke your right to remain silent by remaining silent, but must speak it. In other words, you must declare your assertion of the right -- and depend entirely on the honesty of your listeners to acknowledge and respect your right.

A right which depends on the fidelity and integrity of those empowered and tempted to ignore it, is no right at all.  It becomes discretionary, arbitrary, and terribly susceptible to gross abuse.

This equates to: trust us, we'll report that you invoked your right.   Sure we will.

All Americans' Constitutional rights got considerably reduced and all Americans are now at risk of government abuse.  (And in fairness, police also suffer as well, as this ruling invites more questions, and more allegations of abuse, and will call into question more actions of perfectly law-abiding officers.)  
 
This decision should be rectified by Congress promptly.

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