As viewers of "Law & Order" know, criminal suspects in custody must be advised of their right to remain silent. But after a Michigan man exercised that right by refusing to talk to police for nearly three hours, his interrogators asked him if he had asked God for forgiveness for shooting another man to death. On Tuesday, the Supreme Court ruled 5 to 4 that his one-word answer — "Yes" — was admissible because he hadn't explicitly invoked his right to silence to stop the police questioning. It's an unjust outcome and a problematic one for future application of the Miranda rule.
The situation that gave rise to Tuesday's ruling was a complicated one: Van Chester Thompkins was advised of his right to remain silent, though he refused to sign a statement indicating that he understood his rights. For nearly three hours of questioning in an 8-by-10-foot room, Thompkins remained mostly silent, making only brief and inconsequential comments, including a remark about the hardness of his chair.
Two hours and 45 minutes into the interrogation, he answered the questions "Do you believe in God?," "Do you pray to him?" and, finally, "Do you pray to God for forgiveness for shooting that boy down?" Writing for the majority, Justice Anthony M. Kennedy said these statements amounted to a waiver of the right to remain silent.
Dissenting Justice Sonia Sotomayor pointed out that the Supreme Court's original Miranda decision in 1966 said that "a valid waiver will not be presumed simply from the silence of the accused after warnings are given, or simply from the fact that a confession was in fact eventually obtained."
Sotomayor has the better argument, especially in light of Miranda's larger purpose of preventing the badgering of suspects. But taking her position to its logical extreme would prevent police from asking questions after an undefined and possibly very brief period of silence. Sometimes silence will reflect a belief by the suspect that he is successfully asserting his right not to speak (a mistake some suspects will make even after this decision). In other situations, silence may simply be a temporary reaction to being in custody, or a sign that the suspect is weighing whether it's in his interest to talk.
The court should have clarified that ambiguity by amending the Miranda rule to require police to tell a suspect at the outset that if he wants to assert his right to silence, he must say so. Unlike that clear rule, Tuesday's ruling is likely to sow the confusion Miranda was designed to eliminate.