Monthly Archives: January 2012

Putting the “Right to Remain Silent” Back on Its Feet

Here’s a question: who must demonstrate that a defendant did or did not invoke his right to remain silent, the defendant or the police?  For decades, the answer was the police.  On January 13, 2012, the Supreme Judicial Court of Massachusetts (“SJC”), re-established that norm of police interrogations.  So, what happened?  Why did the SJC need to re-establish this norm with a ruling?  The answer is Berghuis.

 In 2010, the Supreme Court of the United States (“SCOTUS”) decided Berghuis v. Thompkins. The question in Berghuis was when does a defendant invoke his right to remain silent during an interrogation if he does not specifically invoke the right?  Before we can delve into Berghuis,  a little history must be discussed.  Most people understand that the right to remain silent is known as the Miranda warning, which is given a defendant around the time he is arrested.  The right is derived from the Fifth Amendment to the U.S. Constitution, the right against self-incrimination, which was clarified in Miranda v. ArizonaSCOTUS in Miranda was concerned about coercive interrogation techniques conducted by the police.  Thus, SCOTUS required a warning be given and that the state bear the burden of proving that the right to remain silent was waived, before the defendant’s statements could be used against him.  During the intervening years, many cases have come forward trying to nail down when, how and if a defendant has waived his right to remain silent.  Berghuis was another in that series, with a different set of facts.

In January of 2010, Van Chester Thompkins was interrogated as the suspect in a murder.  Thompkins was interrogated for three hours.  During that time, Thompkins did not directly answer any questions.  In fact, he was almost completely silent for that time.  He did not state a wish to remain silent, or talk to an attorney or even a wish to stop the interrogation.  After the three hours, the police changed tactics.  The police asked Thompkins if he was spiritual.  The police then asked Thompkins if he prayed to God.  The police then asked Thompkins if he would pray to God for forgiveness because he killed a man.  Thompkins’ answer to these questions was “yes.”  These answers were used at Thompkins trial, where he was convicted.  Upon appeal to SCOTUS, the Court held that the right to remain silent will be waived unless the suspect states he is invoking the right.  Too many, this ruling turned Miranda on its ear by placing the burden upon the defendant to demonstrate that he invoked his right.  Justice Sotomayor stated in her dissent that this case is “a substantial retreat from the protection against compelled self-incrimination that Miranda v. Arizona has long provided during custodial interrogation.”   This creates an interesting situation where a suspect must state “I wish to invoke my right to remain silent” in order to remain silent. In steps Commonwealth v. Clarke.

 In Clarke, there is no lengthy interrogation.  The facts in Clarke are much simpler.  Before the interrogation began, the police asked Clarke if he wanted to speak.  Clarke responded by shaking his head.  The police interrogated him anyways, and used his statements against him at trial.  The SJC held that there does not need to be a clear invocation of the right to remain silent, under Article 12 of the Massachusetts Constitution.  The SJC stated that Article 12 of the Massachusetts Constitution provided greater protection than the Fifth Amendment of the U.S. Constitution.  Thus, Massachusetts was not required to follow the ruling of Berghuis.  The SJC also stated that in cases where there is ambiguity as to whether or not the suspect has invoked a right, “there can be no dispute that it is good police practice for them to stop questioning on any other subject and ask the suspect to make his choice clear.”  Therefore, the burden is once again placed upon the police to demonstrate that there was a clear waiver of the right to remain silent before a suspect’s statements can be used at trial.  Well, at least in Massachusetts.      

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Bad Laws: How Good Intentions Can Cause Harm

People want their families to feel safe from the dangers of the world.  It is this feeling that forms the foundation of our legal system.  All types of laws are drafted with this safety in mind.  There are ordinances to make sure buildings are safe.  There are traffic laws to insure that we drive in a safe manner.  There are a many laws to govern how we treat one another.  These include laws that punish those who harm members of the society, such as rape and murder.  These laws are known as malum in se.  Of course, there are also laws that punish regardless of intent, like speeding or most forms of illegal possession.  These laws are known as malum prohibitum.  If you haven’t noticed, there is a theme going on here.  The theme is intent, either on the part of the wrong-doer or the legislature.  Punishing the evil intent of a potential criminal is pretty straight forward as well as supported by the society at large.  The trick part is when the legislature’s intent is to punish regardless of the actor, deeming the act itself illegal.  I’m sure you have a question, like where is this going.  The next step in our discussion is here.

A woman, who is a fourth year medical student and from Tennessee, visits the 9/11 memorial while on a job interview in New York.  The woman, who had no criminal record and is licensed to carry a handgun in Tennessee, spots a sign at the memorial that states no weapons are allowed.  Being the law-abiding citizen that she is, the woman then locates a security guard to have her gun checked before she enters the memorial. The guard escorts her to a police officer who promptly arrests her for carrying an illegal firearm.  It’s illegal since the woman did not have a license to carry a handgun in New York as firearm licenses are not reciprocal between states like driving licenses are.  The district attorney in the case is seeking the minimum sentence for felony gun possession, which is three and a half years.

Now for the fun, what intent is being punished in this scenario?  The woman does not seem to possess the “evil-doer” intent as she was trying to obey the laws.  (Of course, unbeknownst to her, to be in compliance with New York law, obeying the law would have meant leaving her gun at home.)  The usual intent of the legislature in illegal handgun cases it to be tough on crime and add extra sentences to those guilty criminals who use or possess guns.  Thus, a drug dealer arrested with an illegal gun would face an extra three and a half years on top of his conviction for drug dealing.  The laws are written this way so that any judge sentencing a criminal cannot use his/her discretion and lower the sentence.  The problem with these types of laws is when people whom the law is not designed to target get arrested, such as the average person.  Legislators in this case are even asking the district attorney to not seek the minimum punishment.  This is an interesting situation, as legislators are asking a government agency to not enforce a law that the legislature wrote.

Now, there is not much that can be done for the woman from Tennessee.  She is just going to have to see how things shake out in the end.  What can we do about the future?  We’ll just have to think about what type of society we want and elect the appropriate legislators.  Do we want a society where the courts can use their discretion during sentencing? We would have to accept that there will be occasions where, every once in a while, a particular sentence will not be harsh enough for a particular criminal.  Or, do we want laws that have enforced minimums for certain crime?  We would have to accept that these laws would allow for people to serve long sentences even though the “criminal” had no intent to harm anyone?  No answers here, just a lot of thinking.

If you have any legal questions, check out my website and contact me.

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