In the Supreme Court’s decision in Berghuis v. Thompkins, Sonia Sotomayor (in dissent) makes an argument that I find quite frankly bizarre. The case arises from an interrogation in which a suspect (Thompkins) remained largely silent for nearly three hours before confessing to the crime (a homicide). By a 5-4 vote, the Court found the confession admissible.
Sotomayor argues that by not speaking two hours and forty-five minutes, Thompkins had shown that he had not waived his right to remain silent. That’s sounds reasonable, except that, to Sotomayor, “not waiving” doesn’t mean what you think. She argues that not waiving the right is just as good as invoking it, in that any subsequent statements are inadmissible. She summarizes thusly:
The Court concludes today that a criminal suspect waives 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.
Well, that’s one way you could guard that right, I suppose. But Sotomayor misses the obvious way in which you can guard your right to remain silent: by remaining silent!
The whole case arises from the fact that Thompkins eventually broke his silence and confessed. If he had actually remained silent, there would have been no case.
Apparently, Sotomayor and the other three liberal justices want to divorce the concept of a right to remain silent from its commonsense meaning. Most people understand the “right to remain silent” simply to mean that you aren’t required to speak to the police. But to Sotomayor and the liberals, the “right to remain silent” is a legal thing in itself that you must specifically waive in order to speak to the police. Bizarre.
(Via the Corner.)
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