Brian Lande – Tact & Tactics

Posted on June 9, 2010     Leave a Comment

http://cityroom.blogs.nytimes.com/2010/06/09/police-surveillance-records-may-stay-secret-judges-say/

Supreme Court Miranda Decision Shifts Police Burden – TIME

Posted on June 7, 2010     Leave a Comment

Supreme Court Miranda Decision Shifts Police Burden – TIME.

The supreme court recently ruled that invocation of Miranda rights must be done explicitly. While the author of the above article sees this is odd, I find it consistent. After all, to waive one’s rights this must be done through explicit articulation. Why shouldn’t invocation abide by the same linguistic rules? What this comes down to, I think, is that the Supreme Court sees Miranda as a Wittgensteinian Language Game in which there are rules of conduct for what make certain utterances socially meaningful.

The author also takes at face value how Miranda works without looking at how confessions and statements are actually, and legally, obtained. For example, many suspects explicitly invoke only to make incriminating statements on the way to jail. Miranda was created to protect suspects from getting “the third degree.” The kind of verbal tricks deployed by the detective in the latest Miranda case may be tricky and tap at very human emotions of the suspect, but that is not illegal.

Thursday, Jun. 03, 2010Has the Supreme Court Decimated Miranda?By Adam Cohen
When is the right to remain silent not a right to remain silent? When you have to speak in order to claim it.
That is the bizarre paradox that the Supreme Court, by a 5-4 vote, enshrined in the Constitution on Monday. (See a TIME video on Miranda rights.)
Van Thompkins, a criminal suspect, was not interested in talking to the police, and he never affirmatively waived his right to remain silent. But the court ruled that by not saying clearly that he was exercising his right to remain silent, he in fact forfeited the right — and that a one-word answer he gave late in the questioning could be used against him.
The ruling flies in the face of the court’s long-standing insistence that a suspect can waive his rights only by affirmatively doing so. The majority said it was standing by Miranda v. Arizona, the landmark 1966 case that revolutionized police interrogations. But in fact, the court created yet another gaping hole in the Miranda doctrine — this one backed by what can be described as Alice in Wonderland logic.
Thompkins was arrested in connection with a fatal shooting that occurred outside a mall in Michigan in 2000. The police questioned him for close to three hours, but he remained almost completely silent, offering just a few one-word answers. Toward the end, an officer asked Thompkins if he had prayed to God to forgive him for the shooting, and he said “yes.”
Prosecutors used the answer to convict Thompkins of murder, although his lawyers insisted that it violated his right against self-incrimination. Under Miranda, a suspect’s statements to the police could be used only if the suspect knowingly and intelligently waived his right to remain silent. Thompkins never did that. A federal appeals court agreed with his lawyers and threw out the conviction. (See “In Death-Penalty Cases, Innocence Has to Matter.”)
The Supreme Court reinstated Thompkins’ conviction. If he wanted to invoke his right to remain silent, Justice Anthony Kennedy indicated for the majority, he should have spoken up about it. That conclusion “turns Miranda upside down,” Justice Sonia Sotomayor wrote for the four dissenters.
Before Miranda, police had enormous freedom to coerce confessions out of suspects — whether they had committed the crimes they were being questioned about or not. Could police interrogate someone for 40 hours over several days to wring out a confession? Yes, the court ruled in 1941, they could. (Comment on this story.)
Miranda rewrote the rulebook. Criminal suspects have to be informed of their right to remain silent and of the fact that — as the now famous Miranda warning put it — anything they say can and will be used against them in a court of law.
Police and prosecutors reacted with outrage, warning that Miranda would prevent them from solving crimes and putting away criminals. Politicians attacked the court for siding with criminals over the forces of law and order.
See a 1966 TIME story on the Miranda decision.
But then a funny thing happened. Miranda warnings became a staple of television shows and movies. Americans got used to them — and found that they liked them. People began to see the Miranda ruling not as a sop to criminals but as a proud reminder that we are a nation in which even the police must play by the rules.
For years, conservatives continued to attack the Miranda decision, holding out hope that it would be reversed. In 2000, it seemed like it might finally happen — the court had a case that posed a direct challenge to Miranda, and it had a five-member conservative majority. But in the end, Chief Justice William Rehnquist, leader of the conservative bloc, wrote an opinion for a 7-2 majority reaffirming Miranda. “Miranda has become embedded in routine police practice,” he wrote, “to the point where the warnings have become part of our national culture.”
Instead of overruling Miranda, the conservative Justices have now done something they are doing to many landmark progressive decisions — quietly chipping away to the point that they have little power left.
The court has ruled that although statements obtained in violation of Miranda cannot be used by prosecutors in their direct case, they can be used to impeach a defendant who testifies differently at trial. The court also created a “public safety” exception, by which police can question suspects without reading them their Miranda rights if there is an imminent danger — an exception law enforcement is reportedly using a great deal in terrorism cases, including the recent Times Square bombing attempt.
With this week’s ruling, however, the chipping away reaches a new level — an important chunk of Miranda has fallen away. The heavy burden that the police once had to show that someone had waived his Miranda rights is now significantly reduced.
The Buddhists are known for their koans, enigmatic questions and statements that cannot be readily understood by rational thinking, like “What is the sound of one hand clapping?”
This week, the Supreme Court imported this sort of beyond-rational thinking into constitutional law. We now have a right to remain silent that can be exercised only by speaking up.