Miranda

The newest Miranda ruling came down recently, and the media has been in a flutter. My personal favorite is the Time article entitled Has the Supreme Court Decimated Miranda? The short answer is no. In fact, the long answer is no. In summation, the answer is no.

Miranda is valid law (although it defines the "Alice in Wonderland logic" Time claims is utilized by Van Thompkins, and I would say is the worst decided case in SCOUS history, ignoring its cases about the Commerce Clause from about 1938-1990). We have to understand what Miranda says, and what it doesn't. First off, Miranda is not the case which states that a criminal defendant has a right to silence. What Miranda says is two fold. First, police must inform a criminal suspect of their right to remain silent (and the right to have an attorney) prior to any custodial interrogation. Second, if a criminal suspect asserts his right to either, all interrogation must cease. One of the interesting things about Miranda is that the case was about overly aggressive interrogation tactics, yet the Warren Court (as was their custom) did nothing to limit the aggressive interrogation tactics which could be used on suspects. Rather, they said that when the guy says stop, you have to stop.

To waive those rights, you must do so knowingly and voluntarily. Knowingly means, you have to know and understand the rights (hence the Miranda warnings), and voluntarily means there cannot be overt coercion (hence why we are not allowed to water board suspects because they won't talk to us). While I have not read this case, I will give the benefit of the doubt to Time as to the facts (although their legal analysis could not be further off).

"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.'"

While there is no mention of if he was told his Miranda rights, I am going to assume he was. If he wasn't this would have never made it to the SCOUS. Because he was told his Miranda rights, when he replied, it was knowingly. The only coercion was that he was asked questions for close to three hours, which is not overt coercion, so this is voluntary. Did he waive his right to remain silent? Well, he didn't have to say something, and he did. That is a waiver. There is no violation of Miranda. This is an easy case.

Today, police and prosicutors LOVE Miranda. Under Miranda, once someone has been informed of their rights, its game on. Until they say stop, anything they say is fair game. Furthermore, this is not a conspiricy of the conservitave members of the Court. This opinion was written by Justice Kennedy. Justice Kennedy is one of the justices responcible for Planned Parenthood v. Casey, the current abortion case. *Side note: Roe v. Wade was practically overturned by Casey, which implimented a new standard for judging abortion cases, while affirming Roe in spirit.*

Kennedy is not a conservative, so why is it important for him to be labeled as one? Liberals have controlled the Court since the Switch in Time that Saved nine, in 1937. Liberals have since used the Court to push every "progressive" goal they have, but which they are unable to get the other branches to buy into. However, the make up of the Court has changed. The Court is currently a 4-4-1 with the liberals, Stevens, Ginsburg, Breyer, Sotomayor, in a tie with the conservatives, Scalia, Thomas, Roberts, and Alito. The tie breaker is Kennedy, the moderate, who is rather unpredictable. The reason liberals need this to be considered a conservative court is it motivates their base. Ask people if they think the SCOUS should have an equal number of people from both the major political parties on it, with someone in the center as a tie breaker, and they will say thats a good idea. Tell people that the evil conservatives control the Court (insert a reference to Bush), and you can panic them into doing what you tell them to.

In this case, the Court held that police can continue to question someone until they give an affirmative sign they want to remain silent (only answering a couple of questions from police is not an affirmative sign). The question is not how much did the majority want to chip away at Miranda; the question is how much did the minority want to expand it beyond the original ruling.

When the police question you, say, all together now. "I want an attorney." Don't just sit there... And if you choose to just sit there, actually remain silent. Its not hard people, if you are not going to say anything, don't fucking say anything.