Posted by Orin Kerr:
Miranda and the Silent Treatment:
http://volokh.com/archives/archive_2007_09_23-2007_09_29.shtml#1190675217
Check out [1]United States v. Thogsophaporn, a fascinating Miranda
case I found via [2]Appellate Law & Practice.
Facts: Defendant is taken into custody and read his rights. The
defendant is asked to waive his rights but he declines. An
investigator then sits down in the small interview room with the
defendant in silence for five minutes, three to five feet away from
him, until the defendant asks for some water. The investigator brings
it to him, and then the defendant asks what is going on. The
investigator responds that the defendant knows what is going on, and
the defendant asks if the police want to talk about him ratting on a
cocaine dealier. The investigator then brings up the fact that his
colleagues want to talk to him, and the defendant then agrees to talk
and waives his rights and confesses.
Legal question: Is the confession admissible under Miranda?
Held: Yes, the statement is admissible, because the defendant was
the one who reinitiated questioning when he asked what was going on.
The court explains:
[T]he agent�s mere silent presence in the room is insufficient to
rise to the level of unlawful coercion or pressure. Indeed, because
the agent was required to avoid discussions concerning defendant�s
legal situation, it is hard to find any fault at all in his
silence. While silence may feel awkward or uncomfortable under some
circumstances, there is no requirement that the police engage in
small talk. Nor was the agent required to exit the room and leave
the defendant unsupervised. See United States v. Andrade, 135 F.3d
104, 106-07 (1st Cir. 1998) (upholding admission of statements
obtained following period in which the defendant did not want to
answer questions and slept while officer remained in room). . . .
In summary, there was nothing improper about [the investigator's]
presence in the room or his silence. At no time did [the
investigator] attempt to resume questioning or persuade defendant
to speak. Defendant was the one who initiated the conversation
about his situation
My reaction: I don't know of any other cases on this particular
technique, but this case has my b.s. detectors going off big time.
Imagine you're in a police interrogation room with a police officer
sitting three feet away from you, completely silent. Maybe he's
staring right at you. Maybe he's staring at a wall. After a few
minutes, the silence is likely to become unbearable; you're going to
at least ask something general like "what is going on?" But presumably
you won't know that this kind of general inquiry was held in [3]Oregon
v. Bradshaw to be enough to reinitiate questioning (however
persuasively), so you're not going to realize that you've just gone
back to Miranda square one.
Meanwhile, presumably the officer does realize this; presumably he
is making you sit there with him in a very uncomfortable situation
knowing full well that you're likely to eventually ask what is going
on. Cf.[4] Missouri v. Seibert. If the test is whether the police
"scrupulously honored" the defendant's choice to remain silent based
on the totality of the circumstances, I find it rather hard to believe
that this type of technique fits the bill. Perhaps there are previous
cases allowing this sort of technique that I just don't know about,
but it certainly seems fishy to me.
References
1. http://www.ca1.uscourts.gov/pdf.opinions/06-1667-01A.pdf
2. http://appellate.typepad.com/appellate/2007/09/ca1-staring-at-.html
3.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=462&invol=1039
4. http://www.law.cornell.edu/supct/html/02-1371.ZS.html
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