The following is a blog post by Pablo Manriquez in response to yesterday’s Supreme Court ruling.
This is from the AP:
For Justice Sotomayor, deciding to make suspects speak to have the right to remain silent was a step too far. Sotomayor, the court’s newest member, wrote a strongly worded dissent for the court’s liberals, saying the majority’s decision “turns Miranda upside down.”
“Criminal suspects must now unambiguously invoke their right to remain silent – which counter-intuitively requires them to speak,” she said. “At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded.”
She was joined in her dissent by Stevens, Ruth Bader Ginsburg and Stephen Breyer.
My immediate reaction to the ruling was that it will be highly consequential to suspects unaware of their inalienable rights before the law; and that the decision is particularly consequential to suspects who don’t speak ‘American’ or understand our American language.
“Criminal suspects must now unambiguously invoke their right to remain silent…”
There is nothing inherently unambiguous about my father’s accent when he speaks ‘American’. He is an American citizen, yet his accent remains soaked in phonetics built a world away in a Chilean slum several lifetimes ago. Were he a suspect, he’d need only speak to risk being conveniently misunderstood confessing.
But the Supreme Court has ruled. In my opinion, the ruling is again highly misguided. Nevertheless, I wonder about the reason(s) Sotomayor dissented. Could it be that Sotomayor’s dissent was a watchdog move, our wise Latina looking out for 2009s most legally-mangled American demographic? Or was it just good old-fashioned sound jurisprudence?
Regrettably, our wise Latina was overruled by her Supreme Court colleagues. That said, Mr. James Duane is a professor at Regent Law School and a former defense attorney. Here Professor Duane cites Justice Robert Jackson saying, “Any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstances.”
Then Duane backtracks, excepting two phrases you can say to a cop, but only these two phrases and never any other:
- “I do not consent to any searches.”
- “I have nothing to say.”
Legally, anything else you say cannot help you and absolutely can be used against you in a court of law, according to Professor Duane. Since watching Duane’s lecture for the first time two years ago, the only two phrases I’ve said to cops are the above. The last time, a cop once went to frisk me in front of my own home and I unambiguously told him, “I do not consent to any searches.” He stopped and said, “Why not? What do you have on you? Drugs? Guns? A knife?…”
“I have nothing to say.” At all. Period. Ever. The freedom of speech is as American as the right to remain silent.