Invoke Your Miranda Rights

http://www.msnbc.msn.com/id/37448356/ns/us_news-crime_and_courts/

So now you have to state openly that you're invoking your Miranda rights before they apply. It's an interesting idea that has some worthwhile practical application. It creates a clear line to stop an interrogation, making it difficult for authorities to put undo pressure on you as long as you're willing to go out and say it. Justice Sotomayor wrote the dissent, which contains the following;

"At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded."

There's quite a bit of merit in that criticism, if one approaches it from the idea that not claiming your right is the same as waiving it. I don't know if that's the case or not in truth. The way I saw it, you could only waive your rights if you held them. For example, I can't waive rights to an intellectual property I don't own. It's an interesting case that was actually brought up recently in an article I read.

http://clancco.com/wp/2010/02/16/moral-rights-copyright-artists/

What is somewhat worrisome for me is things like legal counsel. Is that, too, something that needs to be invoked, or just the right to remain silent? They alternate between using the term "Miranda Rights," which as far as I know includes knowing about the right to legal counsel, and simply not speaking. Huffington Post says you have to alert authorities if you want legal counsel.

http://www.huffingtonpost.com/2010/06/01/supreme-court-miranda-rul_n_596012.html

Less of a good idea now. I'm beginning to see Sotomayer's point in this. Particularly problematic if one considers the issue of those who are mentally incompetent. What about a case of a murderous schizophrenic who is completely unaware of his or her rights? How would they invoke Miranda Rights to get a lawyer?

I appreciate the sentiment of drawing a line with clearly stating Miranda Rights and simply staying silent, since it forces interrogators to back off, but couldn't the right to be silent be made a special provision? It's a bit concerning if we're to assume our rights aren't actually ours until we claim them. To put it another way, if we wanted to clarify whether someone has Miranda Rights, there would have to be a default state, and would have to do something to change that status. In this case, it could either be defaulted that the Miranda Rights are invoked and a change in status involves waiving those rights, or defaulted that they aren't and a change in status requires invoking those rights. The Court has opted into the latter, meaning unless the Defendant says otherwise they don't have Miranda Rights. This is regardless of whether or not the police have read you your rights or not, which does not qualify as "invoking." Anything you say between being arrested and invoking those rights can be used against you, which happens to include anything said during, before, and after the reading of those rights until you explicitly say so. The alternative? Defaulting to the assumption that the Miranda Rights are invoked means that unless the individual makes a concerted effort to legally waive those rights with paperwork, they are protected.

There are worse legal implications than this, too. A friend of mine, Sam, brought up a concerning point. Are Miranda Rights part of the Constitution? Miranda Rights came to be from a court case, specifically "Miranda v. Arizona," settled in 1966. The details and the ruling are as follows.

"In each of these cases, the defendant, while in police custody, was questioned by police officers, detectives, or a prosecuting attorney in a room in which he was cut off from the outside world. None of the defendants was given a full and effective warning of his rights at the outset of the interrogation process. In all four cases, the questioning elicited oral admissions, and, in three of them, signed statements as well, which were admitted at their trials. All defendants were convicted, and all convictions, except in No. 584, were affirmed on appeal.

Held:

1. The prosecution may not use statements, whether exculpatory or inculpatory, stemming from questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way, unless it demonstrates the use of procedural safeguards effective to secure the Fifth Amendment's privilege against self-incrimination. Pp. 444-491."

Taken from Cornell University Law School's online database/library/whatever.
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0384_0436_ZS.html

See, under the wording of this ruling, the Miranda Rights are understood as securing one's Fifth Amendment rights, which if you weren't aware was the right against self-incrimination. Therefore, by extension, they are part of the Fifth Amendment. By another extension, this means that a provision listed under the Bill of Rights is defaulted to "inactive" and has to be "invoked." I shudder to think what this means for the rest of our Rights. Would we have to invoke the right to avoid cruel and unusual punishment? A speedy trial? Free speech? Freedom of religion?

I'm not too happy about this turn of events, though I'm impressed with Justice Sotomayer's dissent. I'd like to see this reversed, or at least made a special provision. It doesn't seem that hard to put in as an accessory to the Miranda Rights that clearly stating you are invoking the Miranda Rights prevents authorities from questioning you.