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There Was Only One Catch, and That Was Catch-22

Professor WF referred to Article III standing as "a word game played by secret rules." Apparently it's not the only such game. Yesterday the Supreme Court issued a clarification of the Miranda rule: if arrested you have the right to remain silent, but to invoke it you must speak. Further, the right is waived by speaking.

Yes, you heard that right: the right to remain silent no longer covers being completely silent. Suspects now must say the right password, at the right time, if they want their constitutional protection.

Worse than facially illogical, the decision is just disappointing. No, I'm not talking about the disappointing IKEA-like craftsmanship that is a Kennedy opinion. I'm talking about the "net practical effect," which, as SCOTUS blog points out, will be that police can continue to interrogate a suspect, perhaps for three hours in a straightbacked chair (those were the facts of yesterdays's case), until the suspect speaks. Whatever the suspect says will be deemed a Miranda waiver, rendering the statement admissible and creating justification for further interrogation. In other words, the net practical effect will be to encourage cheap, dishonest police work.

How on earth did we get here? How did we get to a place where the constitutional right to remain silent must be affirmatively invoked, and yet may be passively waived? It is probably concern that Miranda itself was too broad, and there may be something to that -- but why not own up to the real issue?

I get that the police need to interrogate suspects. I get that suspects' constitutional rights get in the way. I even get that honoring those rights can create miscarriages of justice. But Miranda puts the burden squarely upon the police, and backhanded attempts to restructure that balance are exactly as disingenuous as they are effective.

On the bright side, as the Court completes the job of killing Miranda, it will also moot the ridiculous debate over whether people like the Time Square Bomber should be Mirandized. After all, it won't matter anymore.

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PS: Um. What am I supposed to say if this issue comes up on an MBE question?

Full post as published by Nuts & Boalts on June 02, 2010 (boomark / email).