How the Supreme Court Quietly Undercut Your Miranda Rights

From the BP oil spill to the latest Proposition 8 decision, it's been a busy news cycle — so maybe you missed the fact that the Supreme Court has been whittling away at your Miranda Rights while your back was turned.

The Supremes have just finished their latest session in court, and as they head off for their end-of-summer breaks, they've left the rest of us with significantly hollowed-out rights. On cops shows when arresting suspects, the police invariably declare: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney. If you cannot afford an attorney.” You know, those rights. Yeah, they aren't what they used to be.

The Christian Science Monitor has a great piece reflecting on the court's recent Miranda decisions, which quotes Justice Sotomayor declaring that the Supreme Court's recent round of decisions have turned such so-called Miranda Rights “upside down.” Likewise, a co-chair of the National Association of Criminal Defense Lawyers tells the paper that citizens' Miranda Rights are dying a “death by a thousand cuts.”

What's going on?

You see, back in the day, the right to remain silent was simple. It was your default option. Now, though, thanks to the Supreme Court, the right to remain silent is something that the accused has to actively affirm. Silence won't protect you any longer. In order to remain silent you need to speak and tell them that you want to remain silent — otherwise the police will continue to question you. Can you follow the logic here? Personally, it makes my head spin.

The court also threw some of its weight behind a variation on Miranda Rights that's used in parts of Florida where suspects aren't specifically told that they have the right to have an attorney present while they're being questioned. Instead, suspects are told: “If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning.” Which someone could easily interpret to mean that a lawyer might be appointed to you, but not necessarily available during your questioning.

The third change the Supreme Court enacted is even more worrisome. They gave police the right to re-question any suspect who may have invoked their right to remain silent — as long as the suspect has been out of custody for two weeks. Oh, yes. And when the police question them again, they don't need to bother reading the suspect their rights the second time around.

Which about encapsulates the attitude of this Supreme Court toward our Miranda Rights: apparently, they can (and should) be easily dispensed with.

Photo Credit: yoshiffles