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View Diary: SCOTUS: Your Right To Remain Silent Requires Remaining Silent (104 comments)

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  •  i don't disagree (0+ / 0-)

    that the police should NOT be permitted to "badger" somebody.  i'm only trying to say that so long as the police inform somebody of their rights and do not coerce them, that if somebody wants to waive their rights and talk, that's their problem.

    and i also agree with you that the fifth amendment (and many other amendments/laws/protections) do (and are intended to) hamstring the police.  i just don't think that the police should be unnecessarily hamstrung

    •  Therein lies the rub (1+ / 0-)
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      Joe Bob

      What does it mean to say that the police shouldn't be hamstrung "unnecessarily."  The majority in Miranda specifically states that silence can't constitute an implicit waiver of one's Fifth Amendment right.  Yet, the majority in Berghuis essentially overrules that part of Miranda.  I think that's worthy of the question of whether that was appropriate.

      Keep in mind that the facts in Berghuis are not necessarily as they've been publicized.  According to the ACLU's brief, the "yes" and "no" answers by Thompkins weren't to substantive matters.  So, you have almost 3 hours of a "monologue" by the police officers.   It seems pretty clear that the officers were hoping for exactly what they got - they wore Thompkins down and appealed to his religious beliefs to coerce a confession.

      So, rather than put the burden on a suspect to say the right magic words to get the police to stop questioning him (see Sotomayor's dissent for a quick review of cases where statements to that effect were ignored) and put it back on the police to ask for a very specific waiver of the right to remain silent; something like, "Do you understand your right to remain silent?" and "Knowing that you have the right to remain silent, will you agree to talk to me anyway?"

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