ABA Journal


U.S. Supreme Court

Chemerinsky: Silence is not golden, Supreme Court says

Jun 25, 2013, 06:15 pm CDT


I wonder whom this decision hurts the most: the poor or the extremely poor.

This is not a white collar crime decision. This will definitely be a law that has blue collar effect. I guess its okay to revisit Quinn to come up with your own decision if you're Scalia and co.

By Voiceless Lose Another on 2013 06 28, 11:06 am CDT

Both. Which poor people have an attorney on retainer to provide the recommended advice prior to being questioned by police?

By Lin on 2013 06 28, 11:55 am CDT

I like the part where the professor says that most criminals are too stupid to say "I exercise my right to stay silent' but they are not to stupid to know when to shut up. Nice try professor. Selective stupidity now that is a concept every liberal constitutional or criminal defense attorney understands.

By busseja on 2013 06 28, 12:52 pm CDT

Alito, Scalia and Roberts desperately need to be pulled over by a police vehicle, braced with their hands on the car and frisked-just that, no more. That form of education could change their lives.

By rosslaw on 2013 06 28, 2:16 pm CDT

"divorced from reality." RIGHT ON! What is the 5th Amendment all about when an unschooled citizen, alone in a police station, surrounded by cops, and without counsel, loses his right to remain silent by being silent? I reread "Alice in Wonderland", but couldnt even find anything this outlandish there.

By jungoni on 2013 06 28, 2:59 pm CDT

I don't understand your point, busseja. The writer's point is clearly true. How that affects a case has now been decided by a 5-4 SC decision. I guess your tart response was aimed at the dissenting justices, too.

By Denver Spectator on 2013 06 28, 3:02 pm CDT

a "defendant is not 'compelled … to be a witness against himself' simply because a jury has been told that it may draw an adverse inference from his silence."

As Sgt Friday used to say: "How d'ya figger?"

By Wittgenstein on 2013 06 28, 3:43 pm CDT

The net result of this decision is that when a person is speaking to a police officer and the officer asks a question that would be incriminating in some way to the person, one of four things can happen:
the person can respond-which will probably get them into trouble,
the person can lie-which will get them into trouble when its uncovered,
the preson can say nothing- which will get them into trouble at trial, or
the person can immediately say "i invoke my right to remain silent" which will probably make them the center of focus for a police investigation that will get them into trouble

So it seems the police now have a big incentive to just go around casually talking to potential suspects of crimes in the hope that when asked a potentially damaging question the person won't immediately speak the magic words and the incriminating question can be introduced at a subsequent trial as evidence of guilt.

Why build a case when you can just go fishing? Got a robbery witness? Maybe you should ask them if they have any drug connections; after all, it could be relevant to the ongoing investigation, right?

So, won't this have the net effect of reducing the willingness of people to cooperate with police?

By Robert B. on 2013 06 28, 8:30 pm CDT

First paragraph of the opinion says he was in custody but WAS NOT MIRANDIZED. How would an ordinary citizen know he has a right to remain silent in this situation if not Mirandized? How would an ordinary citizen know this if not accompanied by an attorney? So he went down to the station with the police - wouldn't you? Even as an attorney, wouldn't you want to help the police by "answering a few questions"? As an attorney yourself, you would know when to say "I want to call my attorney" - but would an ordinary citizen know this? The Court apparently went against its own prior decision on a similar question to come up with this - we are all in trouble.

By NAY on 2013 06 28, 9:14 pm CDT

I'm starting to wonder whether each branch of government now has a "favorite" Amendment they would like to kick off the Bill of Rights.

Robert B., I like your analysis.

Having said that, I agree that a person (any person) -- suspect or not, in custody or not -- should never lie to the police. Up until this case, you could simply advise the public to keep quiet, which was often the most prudent thing to do. Not anymore.

BTW, is everyone aware of the PBS-Frontline documentary, The Confessions? It is available online. I strongly recommend it.

If this could happen to a group of US servicemen with perfectly clean records, what chance do ordinary civilians have?

Also, my state just freed a man who was in prison for twenty years for a murder he did not commit. The proof of his factual innocence was there all along, because at and around the time of the killings he was in custody, in the very state, for an entirely different offense. Yet another example of something that "can't happen," yet happens all the time.

By Sonja (real name, real spelling) on 2013 06 29, 1:02 am CDT

*in the very same state


By Sonja (real name . . . you know) on 2013 06 29, 1:04 am CDT

Whether the Court was right or wrong, the fact remains that there must be a line drawn somewhere as to the limits of the right against self-incrimination. And it will never be easy; it will often be truly unjust.

Even if this case had reached the opposite result, other limits to the right would remain. Civil liability or civil penalties could result from exercising the right, since an adverse inference can be drawn from the silence. Deportations, firings, and all kinds of other bad stuff can flow from the silence of an accused. There will always be individual cases where the bad stuff will seem - and rightly so - to be outrageously unjust, even if the rule seems perfectly wise and fair.

By Avon on 2013 06 29, 2:48 am CDT

I just don't get it. How is a fundamental right not exercised by exercising it? It is just as logical to say that by the verbal assertion that the right is being exercised the right has been waived by the verbal response.

By Redwood on 2013 06 29, 8:17 pm CDT

It. Is extremely unusual for me to not be able to find an articulable argument to in support of a SCOTUS decision. But short of providing a method to short law and order episodes I can't find a way to defend this decision. In a custodial situation Miranda would apply, in a non-custodial situation no requirement to co-operate exists. This ruling creates "coercion" since the mere posing of a question creates a legal requirement to provide a verbal response. One must wonder what effect this will have on defends who's refusal to speak at all are assigned counsel by the court. Miranda has always been interpreted to require request for counsel but in practice courts recognize the need whether requested or not.

By CASpark on 2013 06 30, 9:11 am CDT

I like Erwin Chemerinsky's article a lot. But I like the blurb from Justice Thomas' concurrence even more. (I'm mad at the homophobic Justice Scalia so I'm not going to say that I agree with him.)

By Tom Youngjohn on 2013 07 02, 3:09 am CDT

There's a fascinating and engaging lecture on the topic of NOT TALKING TO THE POLICE, a link to which was posted by another commenter ("Shuddup!") on the original ABA Journal article that reported the Supreme Court's ruling ("SCOTUS: Silence can be used against defendant who didn’t claim privilege in voluntary meeting"):

DEFINITELY worth watching.


By emjaycee on 2013 07 02, 8:38 am CDT

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