You Have No Right to Remain Silent

Anyone who has ever watched a cop show knows that you have a right to remain silent in response to police questioning, and that if you knowingly waive that right, “anything you say can be used against you in a court of law.” The Miranda warnings, named after the 1966 Supreme Court case that gave rise to them, are deeply embedded in both legal and popular culture.

Given the warnings’ established place in police procedures, TV cops and real-life police officers might be surprised to learn that the first Miranda right is not a right at all, at least according to the government.

In a case argued before the Supreme Court last Wednesday, Deputy Solicitor General Paul Clement explained that coercive interrogations in no way violate the rights of detainees. He claimed that the constitutional violation at issue in Miranda v. Arizona occurs only in court, if and when the prosecution tries to introduce a suspect’s coerced statements as evidence.

Put bluntly, you have no right to remain silent. What you have, instead, is a right not to be criminally prosecuted on the basis of your coerced statements. If the government is correct, then the language of the Miranda warnings is wrong.

Shoot First, Ask Questions Later

Nobody disputes that the case currently before the Supreme Court involves coerced statements. Oliverio Martinez, the 34-year-old farm worker who brought the case, was interrogated in an ambulance and a hospital emergency room after being shot five times by police.

“Ay! I am dying! . . . What are you doing to me?” an agonized Martinez is heard to cry out on a tape recording of the interrogation. Despite Martinez’s insistence that he is in no condition to talk, the police sergeant does not stop his questioning. “If you are going to die, tell me what happened,” urges the sergeant, who is now a defendant in Martinez’s damages suit.

The police sergeant’s tenacity in continuing the questioning–he persisted on and off over a 45 minute period–may have stemmed from a concern that his fellow officers could be found responsible for wrongfully shooting Martinez.

The shooting occurred after police stopped Martinez when he was riding his bicycle home from work one day. The officers, who were questioning another man, ordered Martinez to dismount. Martinez, who was never criminally charged for the incident, had in his waistband a sheathed knife that he used to cut strawberries. When one of the officers noticed the knife, he wrestled Martinez to the ground, and a scuffle ensued. The other officer, who allegedly believed that Martinez was reaching for his partner’s gun, shot Martinez five times at point-blank range.

“O.K. You’re dying. But tell me why you were fighting with the police,” demanded the police sergeant during his interrogation of Martinez. Repeatedly, as he pressed on with the interrogation, the sergeant asked the injured man to admit that he had tried to grab the officer’s gun.

Martinez is now blind and paraplegic, but the Oxnard police department, a defendant in his civil suit, refuses to compensate him for his injuries. Nor did the three officers involved in the shooting ever face disciplinary sanctions.

The Dispensable Right to Silence

Besides a claim of excessive force, Martinez’s suit against the police alleges that his Fifth and Fourteenth Amendment right to be free of coercive interrogation was violated. The defendants–whose arguments are seconded by the federal government in a brief submitted by the Solicitor General–argue that the coerciveness of the interrogation is simply irrelevant, given that Martinez was never criminally prosecuted.

Under the rule that the government proposes, defendants have a right not to have their coerced statements used as evidence against them in a criminal prosecution. But they have no right, in itself, to remain silent in the face of police questioning. The constitutional violation, in the government’s view, only occurs during the subsequent criminal proceeding; it does not occur during the questioning itself.

If the Supreme Court upholds the government’s preferred reading of the Constitution, then it means that police will have to decide, before starting to interrogate a suspect, which of two possible routes to take. As long as the suspect’s statements will not used to prosecute him or her, the police are free to rely on coercive questioning to obtain the desired information. But if the police believe that the suspect’s statements will be necessary at trial, then they need to advise the suspect that he or she is free to remain silent.

To speak of a “right” to remain silent, when the purported right exists at the discretion of the interrogating officer, would be an exaggeration.

The Case’s Practical Implications for the Future

As it would play out in practice, this weighing of possible options seems a far cry from the bright-line requirement that the Miranda decision was meant to establish. And the government’s suggested rule might, as civil rights advocates have warned, open the door to increased police reliance on threats and violence.

The new rule could also spark tensions between police and frustrated prosecutors, who–if police choose to exercise their discretion to conduct coercive interrogations–would be stuck with a rash of statements that are inadmissible in court. But because police interrogations are so often conducted precisely in order to obtain incriminating statements from the suspect, prudent police departments would probably continue to train their officers to give Miranda warnings as a matter of course.

It may become clear, in retrospect, that the real importance of the Supreme Court’s decision in this pending case has little to do with normal police actions. Instead, the impact of the Court’s ruling might primarily be felt by a very specific group of suspects: those held for alleged involvement in terrorism. This case could, in fact, be the first of what may end up being a series of Supreme Court decisions legitimating an inquisitorial approach to dealing with terrorism detainees.

It is probably no coincidence, therefore, that Paul Clement, the deputy solicitor general who argued the government’s position in the present proceedings, also handles his office’s involvement in the cases of Jose Padilla and Yaser Hamdi, the two American “enemy combatants” currently held in indefinite, incommunicado detention.

The Coercive Interrogation of “Enemy Combatants”

At present, the legal status of terrorism-related detainees is far from settled. It is obvious, nonetheless, that the Bush administration’s preferred approach is generally to designate suspected terrorists as “enemy combatants,” not criminals. The effect of the designation is that the suspects are not, in the administration’s view, persons who benefit from any of the basic procedural protections provided under the criminal law.

Viewed as a whole and in its details, the administration’s approach to the detainees is an inquisitorial one. Lawyers–or any other potential advocates for the rights of the detainees–are excluded from the process. The executive branch has exclusive power to detain the suspects, interrogate them, assess their responses, and – if, and only if, it is satisfied that they are not implicated in terrorist acts – release them.

Under any fair assessment of their situation, the detainees held as “enemy combatants” are being subject to coercive interrogation. (Granted, this is a difficult assessment to make, given that no independent monitor has access to the detainees, but it is clear that the conditions of their detention are inherently coercive, and that the government has not been advising them of any right to remain silent.)

Indeed, in legal briefs submitted to the federal courts reviewing the detentions, the administration makes specific reference to the need for intelligence collection. And as these briefs emphasize, successful interrogations require the creation of an atmosphere of “dependency and trust” between detainees and U.S. intelligence-gathering personnel.

If Miranda were interpreted to extend outside of the scope of criminal prosecutions, it might be understood to lend some protection to the detainees. It is thus unsurprising that at oral argument on Wednesday in the Martinez case, Justice Antonin Scalia specifically questioned Martinez’s counsel about the case’s implications for fighting terrorism.

What “Shocks the Conscience”?

So, assuming that Miranda’s protections are inapplicable, are there any constitutional limits on the government’s power to coerce statements from detained suspects? According to the Solicitor General’s brief in the Martinez case, there are. But they give official interrogators considerable leeway.

Outside of the criminal law context, asserts the government, the Constitution only prohibits official misconduct “so brutal and so offensive to human dignity” that it “shocks the conscience.”

One assumes, hopefully, that the torture of detainees would be deemed to fall within this category. And I should note here that there is no evidence that any of the so-called enemy combatants has been subject to torture. (I should also note, however that a few so-called civil libertarians like Alan Dershowitz are quite prepared to sanction the torture of terrorist suspects (but query as to whether he has a conscience left to shock).)

Still, it’s depressing to think that outright brutality is now the test. We seem to have come a long way from Miranda, and the optimism that imbued the Supreme Court’s 1966 opinion.

Announcing its ruling in Miranda, the Court spoke in the broadest possible terms: “Today, then, there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings, and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves.”

Today, in contrast, there are increasing doubts about the reach of all of our constitutional rights.

JOANNE MARINER is a human rights lawyer based in New York. She can be reached at:


JOANNE MARINER is a human rights lawyer living in New York and Paris.