SCOTUS - Miranda Case Du Jour
The issue, as set forth in Defendant's brief, is: "Whether the Sixth Circuit expanded the Miranda v. Arizona rule to prevent an officer from attempting to non-coercively persuade a defendant to cooperate where the officer informed the defendant of his rights, the defendant acknowledged them, and then he remained silent for almost three hours."
The transcript from this morning is pretty fascinating. Ginsburg, Breyer and Sotomayor are immediately all over the Solicitor General, wanting to know how one can imply waiver of Miranda rights from more than two hours of silence followed by a confession, particularly since there is clear precedent that you can't infer waiver of Miranda from the confession itself. Finally, Scalia steps in to point out that the court has never ruled that 2.5 hours is too long; ie, that the question is really at what point it becomes abusive to keep questioning a person that has neither waived nor not waived. But then Sotomayor hits the nail on the head:
JUSTICE SOTOMAYOR: You want to change the Miranda rule to say: Tell someone their rights and unless they explicitly say "I don't want to talk to you," then they implicitly under virtually any circumstance haven't. That's what you believe the rule in Miranda and Butler and Davis sets forth?
To which Scalia responds that it sounds good to him:
JUSTICE SCALIA: Why shouldn't we have a rule which simply says if you don't want to be interrogated, all you have to say is "I don't want to answer your questions"?
By my count, you've got Sotomayor, Stevens, Breyer and Ginsburg clearly supporting the Sotomayor position that Miranda requires a waiver of rights and Scalia, Roberts and Alito clearly supporting a rule that a person ought to have to say he doesn't want to answer questions if he doesn't want to answer questions. Despite his usual oral argument silence, I think it's safe to assume Thomas is with Scalia, Roberts and Alito. Which leaves Kennedy in the middle again. He asks questions throughout that seem to genuinely be attempts at discerning the best answer.
On the upside, I thought that the fact that Sotomayor used to be a prosecutor would mean that the right half of the court would have a deciding vote on criminal justice issues. That appears to be a mistaken assumption. My apologies to the former prosecutors of the world.