* title taken from a comment at Balloon Juice
A 5-4 decision in Berghuis v. Thompkins [pdf] was released by the U.S. Supreme Court today, apparently narrowing Miranda. Justice Sonia Sotomayor wrote the dissent:
….JUSTICE SOTOMAYOR, with whom JUSTICE STEVENS, JUSTICE GINSBURG, and JUSTICE BREYER join, dissenting.
The Court concludes today that a criminal suspectwaives his right to remain silent if, after sitting tacit and uncommunicative through nearly three hours of police interrogation, he utters a few one-word responses. The Court also concludes that a suspect who wishes to guard his right to remain silent against such a finding of “waiver” must, counterintuitively, speak-and must do so with sufficient precision to satisfy a clear-statement rule that construes ambiguity in favor of the police. Both propositions mark a substantial retreat from the protection against compelled self-incrimination that Miranda v. Arizona, 384 U. S. 436 (1966), has long provided during custodial interrogation. The broad rules the Court announces today are also troubling because they are unnecessary to decide this case, which is governed by the deferential standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2254(d). Because I believe Thompkins is entitled to relief under AEDPA on the ground that his statements were admitted at trial without the prosecution having carried its burden to show that he waived his right to remain silent; because longstanding principles of judicial restraint counsel leaving for another day the questions of law the Court reaches out to decide; and because the Court’s answers to those questions do not result from a faithful application of our prior decisions, I respectfully dissent….
There’s been some discussion of the use of the term “counterintuitively”. I interpret it in the context that it would be counterintuitive for anyone being interrogated by the authorities to think that they would need to speak up to remain silent.
The lesson in all this? Never speak to the authorities unless you have your attorney present.