Yell loudly if you want to remain silent

Today, the United States Supreme Court, by a 5-4 vote, placed the burden on the defendant to speak up and "unambiguously" assert his or her right to remain silent. According to the Court, simply remaining silent (for nearly three-hours) does not make it clear to the police that a defendant might really wish to remain silent. The case is Berghuis v. Thompkins.

Justice Sotamayor, in a powerful dissent, observes that this ruling turns Miranda precedent upside down—where in the past the prosecution had to meet a “heavy burden…to demonstrate the defendant knowingly and voluntarily waived his privilege against self-incrimination and his right to counsel”—now the burden is shifted entirely to the defendant. All that the prosecution must show is that the warnings were provided to the defendant—if that is done, then waiver will be presumed absent an explicit and unambiguous assertion.

This is a great result for obtaining confessions. But, it is also a terrible green light to abusive and unfair police practices. It also bodes ill for all other forms of constitutional waivers—where once the burden was on the government to prove a citizen waived a right, now it would appear the burden will be on all of us to clearly, loudly, unambiguously and explicitly assert our rights, or forever lose them…