Wednesday, June 2, 2010

Miranda, silence, and criminal evidence

I guess I'm going out on a limb when I say that I'm not that upset by the latest Supreme Court ruling -- another 5 - 4 decision by the usual suspects. Naturally we can't expect the conservative majority to be overly enthusiastic about the rights of actual humans (as opposed to corporations) -- that's not what "conservatism" is about.

Nevertheless, the ruling doesn't overturn Miranda in the sense that police must still remind suspects that they have the right to remain silent. However, it does say that, absent a definite (verbal) refusal by the suspect to waive those rights, the police may still continue questioning and use any responses as evidence.

I really don't have a problem with that. I disagree with the suggestion of justice Sotomayor (in dissent) that there is something self-contradictory in the suspect having to speak out in order to preserve the right to remain silent. This is a mere cavil -- the request for silence precedes the actual silence requested, hence doesn't contradict it.

I have a certain sympathy with the point of view that suspects are owed a reminder of their rights, but just that. The issue is, if they don't assert these rights, must police automatically stop questioning them. The Court failed to determine, in the case of ambiguous silence, when police questioning is harrassment or, more to the point, a kind of threat or torture which might evince a false confession. I find it hard to believe that an innocent person would admit to a crime after being informed of their right to remain silent, unless subjected to extreme duress. Of course, I admit that this could happen, but the unlikeliness makes me less upset over this decision than I have been about others by this conservative court.

In a similar vein, I don't believe that a criminal conviction should be thrown out simply because there is doubt as to the nature of the search that led up to it. It seems to me that if police conduct an improper search, they should be punished in some way: official reprimand and demotion, for example, fines, or even dismissal. On the other hand, if the search uncovers an actual crime, why should the defendent go free? Misconduct of the police and criminal activity are two different issues and should be treated separately. No one benefits if a guilty person goes free and no innocent person will suffer as long as the police misconduct is punished sufficiently so as to discourage future misconduct.

I realize that these are debatable points, and I welcome reader comments.

1 comment:

  1. The only really fundamental law is probably the law of unintended consequences, since it is usually very difficult to predict what this or that law will lead to. Computer simulations may help, and they are already used in research, but this field is still in its infancy and I doubt that they will be used any time soon to argue for or against particular laws, which is unfortunate, since we will remain at the mercy of the ideologues instead of making rational decisions.