The Court handed down a big ruling today in Berghuis v. Thompkins about the Miranda Rule. SCOTUSblog:
...the Court held, by a vote of five to four, that suspects must explicitly tell police that they want to be silent to invoke Miranda protections during criminal investigations. Justice Sotomayor’s dissent was longer than the majority opinion and drew particular notice. The L.A. Times’s David Savage describes it as her “first strongly written dissent,” while Tony Mauro of the National Law Journal characterizes it as perhaps “her most important writing since joining the Court.”
In the case, the defendant (Thompkins) was being questioned in a murder trial. For three hours he said not a single word -- he held absolute silence. In the third hour, he was asked whether he would like to pray to God for forgiveness for his crime, and he responded, "Yes."
Thompkins' lawyers argued that the "Yes" could not be used against Thompkins in the court of law because he had, in those three hours, been absolutely silent -- thus asserting his right under the Miranda Rule to remain silent.
The court ruled against that, saying that in order for you to assert your right to silence, you need to verbally and deliberately invoke your right to silence. Even if you are silent for three, five, twenty hours, if you speak you are waiving your right to silence.
Unfortunately, there are no protections to prevent law enforcement officials from simply waiting you out, barraging you with questions, and generally bullying until you break under the pressure. Granted, it's not forced confession like torture, but it still may lead to false confessions from those prone to break under pressure.
I agree with Sotomayor's passionate dissent. Note, by the way, that Sotomayor is the only trial judge on the Supreme Court. The other justices come from non-criminal Trial backgrounds, and so they perhaps have less direct experience with criminal trials, and the way that the protections afforded to the defendant protect them from abuses of the law.
In the world of the more esoteric, it may seem like a no-brainer that if a criminal says something they are waiving their right to remain silent (and it does seem in keeping with the way the Miranda Warning is phrased --- RTWT, btw, there's some fascinating distinctions between different nations and their equivalents to our Miranda Warning). But in practice, any right that you have to assert will be tailored to the educated and intelligent criminal; the poor and uneducated will not know.
According to NPR, criminal justice professors from right to left have been against the ruling; the people in favor of the ruling are law enforcement officials. One officer quoted in the NPR story said on air that the ruling is good because it would make things easier for police.
There's the bias: is easier for police always better for the community?
