Bye, Bye, Bye Miranda

June 2, 2010

All Posts, News

As of June 1st, it is once again legal in America to trick a confession out of a suspect.

Since 1966, criminal suspects have been constitutionally protected from being browbeaten into incriminating themselves by a ruling titled Miranda versus Arizona. All criminal suspects have a constitutional right not to be compelled into being made a witness against themselves. Until Miranda, that constitutional protection was generally understood to mean that police could not beat a confession out of a suspect. Miranda found that instead of torturing a suspect modern police had started to “persuade, trick or cajole him out of exercising his constitutional rights.”

Consequently, the Court stipulated a set of rules that police had to follow to get a legally admissible confession out of a suspect. These rules have been summarized in the Miranda warning that police are supposed to recite at the moment of arrest. The incantation begins with the statement, “You have the right to remain silent,” and then almost always turns into a sales pitch for confessing anyway. Usually suspects are told they can avoid jail by “coming clean.” Typically police promise “we aren’t really interested in you” or threaten to “tear your house apart” unless you confess. The intention of Miranda was to outlaw these bribes and compulsions.

Tuesday’s Ruling

Tuesday’s Supreme Court ruling in a case titled Berghuis v. Thompkins formally turned Miranda inside out. In one day Miranda was transformed from a constitutional protection for suspects into a constitutional protection for police. Last week police had to prove that a suspect knew and had chosen to ignore his constitutional right against self-incrimination for a confession to be legal. This week a defendant must prove that he was deprived of his constitutional right or his confession will always be valid.

The ruling specifically addressed the appeal of a convicted murderer named Van Chester Thompkins. Thompkins was arrested on suspicion of shooting and killing Samuel Morris in Southfield, Michigan. He was advised of his right against self incrimination and then he shut up. He refused to say anything or sign anything. He did not specifically ask that a lawyer be present and he refused to sign a statement that he had been Mirandized and wished to remain silent.

So for three hours multiple interrogators harangued him until one of them asked him if he believed in God. When Thompkins confessed that he did the interrogator asked “Do you pray to God to forgive you for shooting that boy down?’’

Thompkins confessed to the crime by answering “Yes.”

Judges Argue To And Fro

The Sixth Circuit Court of Appeals ruled that Thompkins confession was inadmissible as evidence against him because his silence for three hours “offered a clear and unequivocal message to the officers: Thompkins did not wish to waive his rights.’’

The Supreme Court overruled the Sixth Circuit by a five to four vote. The majority opinion was written by Justice Anthony Kennedy who said, “If Thompkins wanted to remain silent, he could have said nothing in response to questions, or he could have unambiguously involved his Miranda rights and ended the interrogation…. The fact that Thompkins made a statement about three hours after receiving a Miranda warning does not overcome the fact that he engaged in a course of conduct indicating waiver.’’

The newest Justice, Sonia Sotomayor, called the majority decision “a substantial retreat from the protections against compelled self-incrimination that Miranda v. Arizona has long provided.” She said Miranda reflected “many of our fundamental values and most noble aspirations.” She argued that compelling a suspect under duress to speak in order to remain silent was “counterintuitive.”

Something’s Happening Here

Superficially, Sotomayor’s dissent would seem to indicate that the Obama administration is disappointed in this ruling. After all, Obama is supposed to be a “liberal” with all that implies. He appointed Sotomayor and the Justices who voted in the majority are mostly “conservative.”

Really what this ruling demonstrates is the obsolescence of terms like liberal and conservative and the emergence of a new American tyranny in response to the “terrorist threat.” Sotomayor’s dissent may have simply surprised Obama.

His most recent Supreme Court nominee, Elena Kagan, has served for the last year as Solicitor General and in that official capacity she has written amicus, or friend of the court, briefs in cases in which the Obama Administration felt it had a vital interest. One of those briefs last September argued against limits the Ninth Circuit Court of Appeals had placed on computer searches. It is the Administration’s position that once the police get their hands on your computer equipment, your entire life should be open to official investigation. And, if the police find probable cause on your computer that you have committed some previously unsuspected crime you can be charged with that.

Kagan also wrote the amicus brief that became the basis for Tuesday’s decision in Berghuis v. Thompkins. It was a case in which the Administration would have seemed to have absolutely no stake, but Kagan interjected Obama and herself into Berghuis and wrote “the government need not prove that a suspect expressly waived his rights.”

The Obama Administration is behaving as it is because it is looking for ways to deny constitutional rights to terrorists. Just last week, the Huffington Post reported:

“The White House has been working with Senator Lindsey Graham (R-S.C.) to craft legislation that would restructure the amount of time interrogators can hold suspected terrorists domestically without reading them their Miranda rights.”

“The Obama administration has been pushing the law’s limits, interrogating suspected terrorists such as Faisal Shahzad, the alleged Time Square bomber, for periods of time that legal observers say have been longer than those traditionally granted under the public safety exception. Spokesman Robert Gibbs acknowledged in early May that the president was ‘interested’ in ‘limited flexibility’ with respect to laws governing how and when to read Miranda rights.”

And, the other factor influencing the President’s positions is that practically nobody in the Administration can imagine themselves ever being arrested and grilled. Arrest and interrogation is something that happens to other people. In seeking to deny constitutional rights to terrorists, Obama just assumes that everyone will agree on who is and who is not a terrorist. He seems never to have heard the phrase “terrorist street gang” and he seems unable to imagine the people against whom that phrase is routinely used.

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18 Responses to “Bye, Bye, Bye Miranda”

  1. troyez Says:

    Too bad Obama doesn’t believe in “terrorists,” in the traditional sense, his administration thinks Tea Party supporters are the bad guys. Middle-eastern combatants who attack U.S. shores/interests have become “freedom fighters.” Whitey is now the enemy to Obama.

  2. Vacuus Cura Says:


    I would like to clarify one point.

    “…he seems unable to imagine the people against whom that phrase is routinely used.”

    Obama doesn’t care against whom that phrase is used. As is typical of dictatorships, the rules apply to the mundanes, not to the rulemakers.

    Vacuus Cura

  3. C8652 Says:

    Like any of us ever really had a choice anyway. Not to be too fatalistic but one has to recognize that the whole interview / interrogation process is only the beginning of a very long show. There are multiple acts, a revolving cast of characters and twisting plots. And lies. Unless you plan to cop to the allegations you need to plan on your appeal, recognizing that you will probably do better defending yourself once the opposition has played their best hand.

    Having said that, and taking the liberty of sending this from the comfort of my private life I offer the following POV. You have one inalienable right. That right is to keep your mother f’ing mouth shut. And that is about the only thing you control.


  4. 10Guage Says:

    Fuck You! I want my lawyer.

  5. DocB Says:

    Quote: That right is to keep your mother f’ing mouth shut. And that is about the only thing you control.

    That’s right, it’s the only thing you can controol. The last time they took me in, it was for something I didn’t do and had absolotely no knowledge of. They handcuffed me to a chair read me my rights and went to work on me when I asked for a lawyer. They’re going to do what they are going to do. It’s up to you to deal with it. I’m sure if we canvased the readers, we’d find quite a few who were Mirandised just before they got hit. The brutality never happened because it’s your word against theirs, and theirs is always right. They later found a time and date stamped recipt in my wallett for having my car polution tested. It proved I was on the other side of town when the crime went down.


    Anything you say can be held against you in a court of law. Nothing you say can be used in your defence. (rules of evidence 101). Knowing that, why would you say anything regardless of what’s happening?

  6. RVN69 Says:

    Ditto to what has already been said. “I want my lawyer” should be the only sound that leave your mouth, except maybe “if you don’t let me use the head I’m gonna piss on your floor!” No Cop is your friend, never give them permission to enter your house or search anywhere, make them get a warrant. They are not going to help you if you cooperate, they are just going to have an easier time convicting you.

    Respect to all that have earned it
    Si vis Pacem, Para Bellum.

  7. Miss Krista Says:

    I gave a friend, really the only one I truly believe is a REALLY GOOD lawyer that I’ve personally met, a pin that says: “Anything you say can and will be twisted, remixed and used against you.” That sums it up. Don’t say a word, carry a key chain that says what my friends keychains he hands out say: Officer I exercise my right to remain silent, please call my lawyer…followed by his name and phone number! Problem is from what I see on TV, people are still gullible enough to think they may be able to somehow “help” and thereby end up hanging themselves, whether or not they’re guilty. This is pathetic and these types of things are why I’m seriously considering a move…far far away to another land. Hate to think it and my Marine father would really be sad to hear it, but he was a smart man and I think he’d feel the same way! Sad but true.

  8. Detroit Dutch Says:


    As a retired US Marine I am thinking along the same lines here. Costa Rica is looking mighty good now a days.

    But all kidding aside, both of these cases recently came out of Federal Cases on Michigan courts and I want to assure each and everyone of you that those of us living and working in Michigan are not sitting on our laurels.

    The meeting of the Michigan- CoC is scheduled for tonight and I expect a hearty debate.

    Liberty & Freedom,

    Detroit Dutch LRMC

    -Club Delegate to the Michigan- Confederation of Clubs (CoC)
    -MCOC board member- Legal & Legislative Committee
    -Vice-Commander for State of Michigan- [US] Defenders Program (NCOM- National Coalition of Motorcyclists)

  9. Goldsboro Williams Says:

    Just as a note of interest, in many locations (including my own town) Miranda is not read at the time of arrest. In fact, the detectives will get annoyed if an arresting officer does Mirandize the suspect. They wait until the detective begins his interview to do the Miranda warnings, because they want there to be opportunities for the suspect to make uncompelled statements that will incriminate him/herself.

    From the arrest to the identification process, and sometimes through the slating process, the prisoner will not be Mirandized, and will not be asked any questions. Eventually the prisoner starts asking the arresting officer questions. Q:”Am I in a lot of trouble?” A:”You’ll have to ask the detective. I don’t know, but the detective will be able to help you out if you help him out.” Q: “Will they go easier on me if I admit it?” A: “I’m just your taxi ride man, but experience would tell me that yes, they will go lighter on you if you talk. Are you on paper now? Oh, that’s too bad. Yeah, if you talk he might still be able to help you though…” Q:”Since I used a gun, will I get mandatory time?”… and all of that goes into the arresting or transporting officers statement.

    After an hour or so of that, the adrenaline starts to drop off and depression starts to set in. And then in walks the detective, asking you to do “the right thing” so he can “help you out.”

    A family member of mine was arrested recently for a whole host of violent felonies. He is an imbecile, but I was surprised to hear that he did one thing right: he invoked his rights.

    Unfortunately for him, his partner did not, and cut a deal with the prosecution. C’est la vie.

    There are three morals there: 1. Do not trust anyone you are talking to while you are in the arrest process. 2. Keep your mouth shut. 3. Don’t be buddies with people of low character. You can be arrested, and still be an honorable man. Unfortunately, many people will opt to cooperate in lieu of prosecution, and some will even embellish the roles of others just to get their own butts out of a jam.

    And when I say “many,” I mean just that. There is a giant file cabinet at every law enforcement agency that contains the names of thousands of informants, both paid and those working off charges. And that cabinet does not even contain the names of the thousands who work their deals through the state, the feds, or the prosecutor’s office.

    Sorry, I started rambling a bit off topic. Nothing I wrote is news to anyone, but it is sad to see so many people get tricked into helping ruin their own lives. How many times have we witnessed a case on television where some poor sap has confessed to something that he didn’t do, after hours of questioning and the supporting statements of his former friends?


  10. The Creep Says:

    The two times I’ve been arrested, I wasn’t read any rights of any kind. As a matter of fact, this last time I was arrested, I wasn’t “read” my rights until the assistant District Attorney read me my DUI plea deal outside the court room, 40 days after the actual arrest. For someone like me, not a big deal because po-lice are my enemy and I know them well and I am not scared of them. It makes me forget though that MOST people are TERRIFIED of the cops. I sat in that court room in awe, total disbelief, at what information people volountarily gave up to cops, and what rediculous little quips cops record and bring up in court. Earlier this week, I witnessed a cop testify that he felt a woman’s entire life should be summarized in one flirty comment she made to said officer, that a stop sign is an acronym for “Slightly Tap On Pedal”. The judge said she should take driving more seriously and found her guilty. I later saw a 17 year old be found guilty of minor in posession of tobacco products because a cop found a lighter in his pocket. Not a box of smokes. Not a used cig filter. Not even loose tobacco from a box that may have been in his pocket. JUST A LIGHTER! The judge was so irritated that the young man’s parents had the gaul to take it to court, he levied maximum fine, stating that they did a dis-service to the taxpayers by wasting the court and officer’s time.

  11. Aerrin Says:

    The Creep: A lighter? Are you serious? I’ve used those for lighting candles since I was old enough to figure out how to use them. Guess it’s lucky no one ever checked my pockets. Might have a gum wrapper in there or something.

  12. Not Surprised Says:

    Years back, my oldest two were in High School. Yeah, they smoked pot. The school Resource Officer pulled the oldest in; said he had information…asked to search his car. Now in my state it is not legal to question a minor without a parent or attorney present.

    Kid knew he didn’t have any drugs, so he consented without any fear.

    Both my sons loved to camp, and they had done so over the weekend. In one of the flap pockets of a knapsack, there was a gen-u-ine Swiss Army Knife I’d gotten my oldest for Christmas.

    He was arrested on the spot, charged with “having a weapon on school premises” and was summarily expelled.

    He was a Senior that year nad had more than one scholarship offer.

    His younger brother admitted (falsely), the knife was his. He then quit school voluntarily. my oldest escaped the wrath of the “sytem” and gained a full scholarship to an excellent school.

    I did not reside in the same city at that time and only found out all of this after the fact, nothing I could do.


    Even when you are telling thr truth and have nothing to hide, do not consent.

  13. Big Bagel Says:

    You can arrest someone and not Miranda them. Arrest plus questioning (regarding the crime) means you must Miranda. Questioning without custody or custody with no interrogation means you don’t have to Miranda.

    This ruling has no effect on the elites or their offspring. They won’t change their underwear without consulting an attorney.

  14. Squirts Says:

    Here’s something to ponder… I teach 8th grade BD kids (behavior disorders). MANY of my former students end up on the “wrong” side of the law. Knowing that, I spend months reviewing the US Constitution with them to make certain that they know what their rules, rights and responsibilities are. I cannot hold their hands as they move through life, but I can at least give them an understanding on why the “rule of law” (such as it is) is important to society. While many of my peers speed through the required instruction in 2 weeks or less, I literally spend 2-3 months every school year on the same material. I do this for a couple of reasons: I’m an old biker and vet and have seen how Uncle Sugar and his blue gang manipulate the law for their own agendas. Secondly, I (as many of you here) know what life was like PRIOR to 911. The students I will be teaching in the Fall were 1 year old when the Twin Towers fell and life as every American knew it ENDED. These kids do not know of the world as any differently than it currently is. THEY, not knowing the freedoms which have been lost, will represent the next wave of citizens programmed to (gladfully and thankfully) give up rights once guaranteed to them via the Constitution in the misguided idea of “safety” offered from Uncle Sugar et al. We’re at a crossroads in American life. We “old timers” are dying off at an incredible rate. Another decade of life as it is will solidify this mindset. We Freedom Fighters ARE a dying breed, therefore we must stop lamenting the demise of this once great country, put our boots in motion and WORK to make sure that our kids, our friends, and our countrymen understand what THEIR rights and responsibilities are as envisioned by the Founders. WE are watching the change happen… Our KIDS and GRANDKIDS will be living it. (Climbing down from my soapbox). Respects to you, Rebel, for presenting this important insight and to the Board for its collective wisdom. Squirts; VFW Post 1117; VFW Riders, IL

  15. Doc Jones Says:

    I just heard on the news and read on the internet that the some Vagos were approached by a woman who was a detective’s wife to kill her husband. It is reported that the Vagos who were involved went to the cops and told on her. If this is true then I have to admit that I have no understanding of where clubs are going these days. If it was me I would have told her no or I would have handled it and got paid. I WOULD NEVER RAT HER OUT!! Am I missing something here?


  16. DocB Says:

    Nope, you’re not missing anything. I wear a small black and white patch that says “I don’t call 911”. Our world our rules. The first exception to a rule makes the second exception that much easier, in fact it almost guarantees that you’ll break it again. So we’re right back to where we’ve always been. Keep yer fuckin’ mouth shut.



    What I’m I missing here on a biker blog site where 30 to 50 % posters are or where 1 % members where ppl have to remind a brother he has to keep his fuking mouth shut when dealing with leo, whether it’s about a traffic ticket or dealing . What has changed so much that something that was so well known, now has to be a reminder. It’s almost like every club needs a lawyer at every church meeting to keep its members updated to life in the real world or maybe some members should not be
    Respect , Steve

  18. Doc Jones Says:


    Thank you!! I’ve always held my mud and I wouldn’t even rat on a rat. I’ve done three prison terms and I’ll do another one if I have to. It’s being right with yourself and your Brothers that counts!!


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