Or at least, that’s probably what you’ve been hearing. The truth is that this new Miranda ruling is actually very narrow and sensible not at all the resounding rollback of the rights of the accused that we’re being told.
The case involves a guy who exercises his right to remain silent and, well, remains silent. He doesn’t ask for a lawyer or for the questioning to be cut off, he just keeps his pie hole shut. Good for him. But then investigators ask him some questions that get him all worked up, and he starts talking and accidentally incriminates himself by admitting his guilt. Oops.
Five justices in the majority hold that he stopped exercising his right to remain silent at the very moment that he ceased his silence. They further say that he had the power to cut off questioning at any time by requesting a lawyer or telling the police that he was not going to answer any questions.
The four-justice minority, let by Sotomayor, seem to think that this is a terrible affront to his rights. They take special issue with the majority’s ruling that he could cut off questioning and indicate the exercise of his rights by verbally asserting them.
But this is not new; the accused have always had to do this. If anything, this ruling actually expands the rights of the accused; now, for the first time, police have to respect a suspect who says he’s not going to answer questions in the same way that they already have to respect his right to see a lawyer.
What it seems is that the minority was looking to expand Miranda rights such that there were circumstances where a suspect could accidentally incriminate himself but still claim that his right to remain silent precluded the use of the incrimination in court. This seems like wanting to have your cake and eat it too: if you want to exercise your right to remain silent, then remain silent! The moment you open your pie hole, you’re not remaining silent anymore and you’ve therefore waived that right.
Really, nothing has changed. The police can no more force you to confess today then they could yesterday. So if you want to avoid the possibility of incriminating yourself once you’re booked, then either keep your damn mouth shut or tell them to stop questioning you because you want a lawyer.