We the People: The Right to Remain Silent

The Fifth Amendment. You have the right to remain silent when you're being questioned in police custody, thanks to the Fifth's protection against self-incrimination. But most people end up talking to police anyway. Why? Today on Throughline's We the People: the Fifth Amendment, the right to remain silent, and how hard it can be to use it. See pcm.adswizz.com https://pcm.adswizz.com for information about our collection and use of personal data for sponsorship and to manage your podcast sponsorship preferences. NPR Privacy Policy https://www.npr.org/about-npr/179878450/privacy-policy

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:00Speaker 00

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• 0:17Rund Abdelfatah?

  Before we begin, we just wanted to let you know that this episode contains descriptions of racial violence. Now, on with the show.

• 0:35Speaker 02

  Took his coat off. Now he's wearing a blue shirt with number 15 on it. Heading northbound through the complex.

• 0:51Speaker 02

  You have a right to remain silent.

• 0:58Speaker 03

  Texted Morgan, "You have the right to remain silent."

• 1:01Speaker 04

  Hey, you're not really arresting me. You have the right to remain silent. Walter White, you have the right to remain silent.

• 1:08Rund Abdelfatah?

  You know this moment. The scene right after the dramatic standoff, when the suspect is finally tracked down and cuffed. Whether it's a serious drama or a parody on The Simpsons, this line is pretty much a must-have in any cop story. Maybe you even know the rest of it, too.

• 1:26Speaker 04

  You have the right to remain silent. Anything you say can and will be used against you in court of law. You have the right to an attorney. If you cannot afford one, an attorney will be provided for you. All right?

• 1:36Speaker 05

  I mean, anybody who watches TV, fourth graders, can read Miranda rights. And show me another decision where, you know, even children know the rights.

• 1:46Speaker 04

  The Miranda rights. The thing the police have to say once you're under arrest and in their custody. And they want to start interrogating you.

• 1:54Speaker 05

  In pop culture, I think Miranda is this nod to your constitutional rights. And the police are going to help you and are going to make sure that you understand your rights. And it feels very collaborative.

• 2:12Speaker 04

  The Miranda rights came out of the Fifth Amendment to the U.S. Constitution. That's the one that protects you against self-incrimination. In other words, you can't be forced to tell on yourself.

• 2:23Speaker 05

  And yet, the vast majority of suspects waive their rights and talk to the police.

• 2:30Speaker 05

  And so there's a mystery there, right? Like, how does that work? What happened?

• 2:37Speaker 04

  That mystery is what we're going to try to solve on this episode. Why is it that despite having the right to silence, most people end up talking anyway? And what does that tell us about what our Fifth Amendment rights really mean? Like many other amendments, the way we understand the Fifth has changed a lot. The framers saw how government power could be abused, and they wanted individual people to have protections against that power in court.

• 3:05Rund Abdelfatah?

  But they couldn't have predicted a world where most of us are less likely to face a judge inside a courtroom than a police officer outside on the streets. They couldn't have imagined someone being pulled over on the I-5 highway, told to step out of their vehicle, questioned, and placed under arrest by officers with guns.

• 3:27Speaker 04

  I'm Ramtin Arablouei.

• 3:29Rund Abdelfatah?

  And I'm Rund Abdelfatah. On today's episode of Throughline from NPR, the latest installment in our We the People series, where we look at the past, present, and future of amendments to the US Constitution, why they were created, how they've been enforced, and why fights over their meaning continue to shape life in the United States.

• 3:50Speaker 04

  Coming up, the Fifth Amendment, the right to remain silent, and how hard it can be to use it.

• 4:08Speaker 06

  My name is Kalou Njokou, and you are listening to Throughline by NPR. I love this show so much because it really helps us understand that where we are right now as a society because of these events that you guys talk about in our past. I'm so thankful for you guys. You all keep me so hungry for knowledge, and I wish you guys the best.

• 4:29Speaker 04

  Stay tuned for the following.

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• 5:42Rund Abdelfatah?

  Part one, The Cruel Trilemma.

• 5:50Rund Abdelfatah?

  It was a spring day in 1934.

• 5:52Speaker 02

  Keper County, Mississippi.

• 5:54Rund Abdelfatah?

  The police were called to the home of a man named Raymond Stewart, a white planter who hired black sharecroppers to work his land. When they got to the scene, the police found Stewart in a critical state. He died just as a physician was arriving. Beaten to death. This is Donald Trips. He's a law professor at the University of San Diego.

• 6:16Speaker 02

  The deputies immediately focused on three African-Americans.

• 6:22Rund Abdelfatah?

  The primary suspect, Ed Brown, was a 30-year-old black sharecropper who worked on Stewart's farm. Police also believed two other black men were involved. Over the next couple of days, the deputy sheriff arrested these men. While in police custody, the men were whipped. One of them was even hung from a tree by his neck. The violence continued until they confessed.

• 6:52Speaker 02

  The trial took place shortly after.

• 6:55Speaker 04

  The three defendants testified that they were not guilty. They described the torture that had led them to falsely confess.

• 7:02Speaker 02

  And everybody in the courtroom could still see the rope mark around his neck.

• 7:06Speaker 04

  And the marks of a whip on the defendant's skin.

• 7:09Speaker 05

  And the deputy sheriff takes the stand.

• 7:13Rund Abdelfatah?

  This is Corinna Barrett Lane. She's a professor of law at the University of Richmond School of Law.

• 7:19Speaker 05

  And he's asked, "Did you, you know, did you put these marks on him? Did you whip this person? Did you hang this person?" And the deputy sheriff says, "Yes," quote.

• 7:30Speaker 02

  "Yes, they were whipped, but not too much for a negro."

• 7:33Speaker 05

  "But not too much for a negro."

• 7:41Speaker 02

  There was no effort to deny this, right?

• 7:43Rund Abdelfatah?

  This is in the middle of Jim Crow in Mississippi. These confessions were the only evidence against the three men. Still, all three of them were convicted and sentenced to death. But the road didn't end there for them. They decided to appeal on the grounds that their confessions should have been inadmissible.

• 8:04Speaker 04

  And the case went up to the Mississippi Supreme Court.

• 8:08Speaker 05

  So the Mississippi Supreme Court affirms the convictions.

• 8:12Speaker 04

  Even though one of the judges on the state Supreme Court dissented, saying,

• 8:17Speaker 06

  "The transcript reads more like pages torn from some medieval account. The so-called trial was never a legitimate proceeding from beginning to end. It was never anything but a fictitious continuation of the mob which originally instituted and engaged in the admitted tortures."

• 8:35Speaker 02

  It's like something out of a medieval torture manual, not from an American courtroom.

• 8:40Speaker 04

  The defendants appealed again. Their case traveled to the US Supreme Court, who was faced with the question, should their convictions be upheld even when the only evidence against them was a set of confessions that the police elicited using violence? If you know your Fifth Amendment rights, the answer might seem obvious.

• 8:59Rund Abdelfatah?

  But if you don't know your rights, the Fifth, just like many of the other amendments, is a litany of commas and semicolons. So let's break it down.

• 9:11Speaker 04

  First, it says,

• 9:12Speaker 02

  "No person shall be held to answer for a capital or otherwise infamous crime unless upon presentment or indictment of a jury."

• 9:18Speaker 04

  The government can't bring serious federal charges against you without a grand jury.

• 9:22Speaker 02

  "Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb."

• 9:27Speaker 04

  You can't get charged for the same crime twice.

• 9:29Rund Abdelfatah?

  And finally, the most important part for our purposes in this episode.

• 9:34Speaker 05

  "nor shall be compelled in any criminal case to be a witness against himself."

• 9:40Speaker 04

  The self-incrimination privilege. In other words, you can't be forced to testify against yourself.

• 9:50Speaker 05

  It seems so obvious upon reading the text that, like, of course, this is supposed to prohibit the police from getting coerced confessions. Of course it is. It pretty much says that.

• 10:00Speaker 04

  But at the time the defendants in Brown versus Mississippi appealed their case to the Supreme Court, the Fifth Amendment wasn't actually an option for protecting people from state police, because when the Bill of Rights was written, that wasn't what the framers were worried about.

• 10:15Rund Abdelfatah?

  Let's go back to that room when the framers are putting together the Constitution. What is that conversation like when it comes to the Fifth Amendment specifically?

• 10:25Speaker 02

  They meet in 89.

• 10:27Speaker 04

  1789, that is.

• 10:29Speaker 02

  And the first thing that they do in Congress is propose a Bill of Rights, because the quid pro quo for getting ratification by Virginia in particular and Massachusetts in particular. In those states, there was a lot of sentiment that we don't need this new government. It's too dangerous. People thought of themselves as Virginians or citizens of Massachusetts or New Yorkers. They didn't think of themselves as citizens of the United States so much. And they were worried that this new government posed a lot of threats to them.

• 10:59Rund Abdelfatah?

  One of the things they were worried about protecting was people's rights when they were accused of a crime. And they were looking back towards Europe as an example of what not to do. There was...

• 11:11Speaker 02

  A contemporary practice on the continent of Europe where the criminal process relied, literally, on juridical torture.

• 11:18Rund Abdelfatah?

  Juridical torture. It basically meant that the judge had all the power in the world to try and get a confession out of someone by any means necessary.

• 11:28Speaker 02

  The judge who investigated the case would collect the evidence and question witnesses and so forth. And if there were two witnesses who accused the suspect...

• 11:39Speaker 02

  Then the suspect could be told to confess. And if he didn't confess, then he'd be put on the rack and tortured until he did confess.

• 11:46Rund Abdelfatah?

  By the time the American founders sat down to write their new nation's constitution, torture had been mostly abolished in Europe, but not completely. And even practices long since gone were on their minds. Until the mid 1600s, courts in England had their own special way of trying to get a confession out of someone. It was called...

• 12:07Speaker 02

  The Star Chamber.

• 12:09Speaker 04

  The Star Chamber, which actually sounds like something right out of a sci fi movie. But it was actually a court where the person accused of a crime would have to appear before the judge without knowing what crime they were being charged with and answer any of the judge's questions. They had to swear before God that they would tell the truth.

• 12:27Speaker 02

  You know, this is still a religious country and nonetheless, that was a much more religious period. And the idea that you could be made to swear an oath to tell the truth and confess all your crimes, people really thought their souls were on the line in a very vivid sense.

• 12:42Speaker 04

  And if they didn't tell the truth, there were real consequences. They could be imprisoned or tortured. People accused of a crime found themselves trapped. It was a tactic that came to be known as...

• 12:53Speaker 05

  The cruel trilemma.

• 12:55Speaker 04

  This was much worse than a plain old dilemma. It was a trilemma. In this court system, people were presumed guilty, which meant they pretty much had three bad options.

• 13:07Speaker 05

  One, confess, because they've been placed under oath and they're guilty. Not a great option. Two, take the stand and lie, say you're innocent, which would open them up to a perjury charge. Or three, take the stand and refuse to do either of those, refuse to testify, which would open them up to contempt of court. So the point is, you can't win.

• 13:35Rund Abdelfatah?

  So this is all in the minds of the framers of the Constitution, right? They're like aware of this history of these practices.

• 13:42Speaker 02

  Right, yeah. They were afraid that the new government would revert to those practices. There was nothing in the Constitution that would prevent copying those European methods of interrogation.

• 13:57Rund Abdelfatah?

  And so this is what the Fifth Amendment was all about and what the framers were trying to avoid. The Fifth would make sure that the new US federal government couldn't use these European court practices on suspects accused of a crime.

• 14:12Speaker 05

  The Bill of Rights were really about the federal government and a limit on what the federal government could do. And so when you think about the Fourth, Fifth, Sixth Amendments, these amendments that are applying in the criminal context, they're applying only to federal prosecutions. And the problem with that is that 97% of all criminal prosecutions, then as now, occur in the state courts. And so, you know, from the very start, none of the Bill of Rights meant a whole lot. 97% of the time, they weren't accessible at all.

• 14:53Rund Abdelfatah?

  Most people charged with a crime would go to trial in a state court, not a federal court. The Fifth Amendment couldn't do anything for them. It also couldn't protect people outside of the courtroom. That might seem like a major oversight by the framers. But remember, when they wrote this amendment, they were living in a completely different world.

• 15:14Speaker 02

  One of the things that's ironic about it or difficult to get your head around is that we didn't have 24/7 uniformed police in this country until 50 or 60 years after the Fifth Amendment was written and ratified. And it was a development that no one really anticipated. The grand jurors were your neighbors, the constable, the sheriff, the justice of the peace, they were all your neighbors. And that persisted for a long time.

• 15:43Speaker 04

  It wasn't until the mid-19th century that more modern features of the criminal justice system we know today began to form. Cities were growing bigger and crimes like theft were becoming more of a problem. In response, cities began to hire full-time police forces and created criminal penitentiaries. In many cases, police specifically targeted black citizens.

• 16:07Speaker 05

  In that civil war and in its aftermath, it becomes quite clear that states also could deprive defendants of their rights, could treat people unfairly. Again, the Bill of Rights protections only applied against the federal government. So they only protected people in federal courts. And to make them real, they have to apply to the states. Well, how are you going to do that?

• 16:33Speaker 04

  The answer was within a brand-new amendment.

• 16:37Speaker 05

  The 14th Amendment.

• 16:38Speaker 04

  All right, we got to pause for a second because I'm sure you're thinking at this point, isn't this episode about the Fifth Amendment? And the answer is yes. But because the 14th Amendment is a big turning point for individual rights, it's going to play an important part in getting us to the Fifth.

• 16:59Rund Abdelfatah?

  So we've talked a lot about the 14th Amendment on the show. We even have a whole episode dedicated to it. It was ratified after the Civil War specifically to guarantee certain rights to black Americans. And it's a big amendment, chock-full of protections. But the part of it that's relevant for this story is a clause called the due process clause.

• 17:21Speaker 05

  Nor shall any state deprive any person of life, liberty, or property without due process of law.

• 17:29Rund Abdelfatah?

  The 14th Amendment said that it wasn't just the federal government that had to respect people's individual rights. It was state governments, too. So now, many of the protections in the Bill of Rights, including the Fifth Amendment, could be expanded.

• 17:45Rund Abdelfatah?

  It was like the 14th was like the key to unlock all the other amendments.

• 17:49Speaker 05

  You've got it exactly right. It is. It was the key they used to unlock it.

• 17:53Speaker 04

  The 14th Amendment was like a legal tool that could be used to extend the protections of the Constitution.

• 18:00Speaker 05

  And so it's a very big deal when the 14th Amendment is adopted. And that's what gives the Supreme Court the ability to create new law.

• 18:11Speaker 04

  And one of the cases where the court applied the 14th Amendment was?

• 18:15Speaker 05

  Brown versus Mississippi in 1936.

• 18:19Speaker 04

  Remember, the three black defendants had been convicted of killing a white farmer based on confessions they gave after days of whippings and even a mock lynching. They were sentenced to death, but appealed their convictions on the grounds that their confessions should have been thrown out.

• 18:36Speaker 06

  The question in this case is whether convictions, which rest solely upon confessions shown to have been extorted by officers of the state by brutality and violence, are consistent with the due process of the law required by the 14th Amendment.

• 18:52Speaker 05

  That's the Supreme Court's very first coerced confession interrogation case where the court comes out and says, okay, we're going to find some protections here. It's the 14th Amendment due process clause that the court turns to, to find those protections.

• 19:10Speaker 06

  Coercing the supposed state's criminals into confessions and using such confessions so coerced from them against them in trial has been the curse of all countries.

• 19:22Speaker 04

  The Supreme Court reverses the men's convictions.

• 19:26Speaker 05

  And says the 14th Amendment due process clause precludes the state from getting convictions using confessions that were obtained by brutality or violence.

• 19:40Speaker 04

  In the decision, they even mentioned those European courts that the framers were so wary of.

• 19:46Speaker 06

  It was the crowning infamy of the Star Chamber and the Inquisition and similar institutions. The Constitution recognized the evils that lay behind these practices and prohibited them in this country.

• 20:04Speaker 05

  And in so doing, the court establishes what has come to be known as the voluntariness test.

• 20:10Rund Abdelfatah?

  The voluntariness test, as in, was that confession voluntary?

• 20:15Speaker 05

  It is the due process clause prohibits the use of confessions that were obtained against a person's will, that were involuntary, due to police action in some way.

• 20:33Speaker 05

  The Supreme Court recognizes it, states it for the very first time in Brown versus Mississippi.

• 20:39Rund Abdelfatah?

  So, great. End of story, right?

• 20:42Speaker 05

  The problem with the voluntariness test, which became more and more clear over time, is what does it mean for a confession to be involuntary? Sure, the Supreme Court says, well, the police have to do something that overtakes your will. I mean, what even does that mean? And what are we going to consider?

• 21:04Speaker 04

  That's coming up.

• 21:17Speaker 04

  Hi, this is Mahmoud Dijama. I'm calling from the great city of Seattle, and you listen to Live from NPR.

• 21:26Speaker 02

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• 22:37Speaker 05

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• 22:42Speaker 05

  Part two, the right to remain silent.

• 23:07Speaker 05

  You know as well as I do that in all these cases where two or more persons pull off a job like this, someone always ends up talking. And in this case, it might as well be you.

• 23:20Speaker 04

  So let's get going before somebody leaves you holding the bag.

• 23:25Speaker 04

  Don't let the other fellow get his licks in first and put all the blame on you. You say your piece first and then we can believe you.

• 23:36Speaker 04

  But if you wait until the other fellow has a say, no one's going to believe your story even when you do decide to tell the truth. Lie Detection and Criminal Interrogation Manual, 1953.

• 23:55Speaker 04

  So in Brown versus Mississippi, the court rules that the confessions that were coerced by police can't be used. That's 1936. And over the next three decades, police coercion cases start flooding the court. There's one where dozens of black men were questioned over the course of eight days. Another where police interrogated someone for 36 hours.

• 24:18Speaker 05

  So long that the police get tired, so then they take shifts in order to do it. And the Supreme Court says, oh, come on. If even you are tired and you have to take shifts, well, that's clearly involuntary.

• 24:30Speaker 04

  There was even a case where the suspect was driven from county to county and told that he might be in danger of being lynched if he didn't confess. These are just a few examples. There were many, many more. And that voluntariness test that the court had established in the Brown case, that confessions have to be voluntary, wasn't really working. Police were still getting people to talk.

• 24:53Rund Abdelfatah?

  So by the 1960s, the Supreme Court finally said, "Look, we can't keep making rulings about voluntariness on a case-by-case basis. We need to come up with some kind of guidance that prevents police coercion from happening in the first place." Which brings us to 1966.

• 25:11Speaker 04

  Miranda versus Arizona.

• 25:15Rund Abdelfatah?

  Ernesto Miranda was arrested for kidnapping and rape.

• 25:18Speaker 02

  And the police arrested him and they questioned him about the crime. And he made oral admissions about it.

• 25:24Rund Abdelfatah?

  He confessed to both.

• 25:25Speaker 02

  And then they had a formal statement typed up and he signed that.

• 25:29Rund Abdelfatah?

  Ernesto Miranda was convicted, which he later appealed on the grounds that police had not informed him of his right to remain silent. His case made its way up to the Supreme Court, along with three other ones that raised similar issues regarding police coerced confessions. And when the Supreme Court got their hands on these cases, they decided, "This is our chance. This is how we can create guidelines that finally tell the police how they need to behave and how suspects could be informed about their rights during interrogation."

• 26:00Speaker 02

  They took four different cases because they were trying to set a rule. And Supreme Court justices wanted a menu of different fact situations so they could say, "Here's what happens in this case. Here's what happened in this case," and so forth.

• 26:13Rund Abdelfatah?

  This is something that the Supreme Court does from time to time. Brown v. Board, Roe v. Wade, where they take a number of similar cases that share similar legal issues and give one cohesive ruling that can be applied to all of them. Kind of like when you want to prove a point. The more examples you can provide, the stronger your case for it.

• 26:33Speaker 04

  And so with these four cases under the heading of Miranda v. Arizona, the justices began writing up some guidance to address the issue of police coercion.

• 26:43Speaker 05

  And what the court says is, "Listen, we've said for a long time. We've said since Brown versus Mississippi that..."

• 26:51Speaker 05

  A confession must be voluntary.

• 26:54Speaker 04

  But the court also says that most of these confessions that are obtained by police are not voluntary. And that's because the environment in which interrogations take place are inherently coercive. Because think about it, being physically restrained and kept in a dark room is probably going to make you feel scared. This is a reading from the majority opinion written by Chief Justice Earl Warren.

• 27:18Speaker 02

  Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.

• 27:30Speaker 05

  Being alone in an interrogation room is designed on purpose to overcome your will. And the court says, any confession that comes out of custodial interrogation.

• 27:46Speaker 04

  Meaning you're in custody of police being interrogated and you can't leave.

• 27:50Speaker 05

  The court says the only way to neutralize the inherently coercive nature of custodial interrogation is to first warn a suspect and to say, you have the right to silence. Anything that you say can and will be used against you.

• 28:10Speaker 04

  In other words, your Fifth Amendment right against self-incrimination now applies when you're being interrogated by the police.

• 28:20Speaker 02

  Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.

• 28:35Speaker 05

  The court is very clear in the case and says, after this long discussion about police interrogation techniques, about the misuse of those techniques, what the court does is this magical move in Miranda.

• 28:55Rund Abdelfatah?

  That magical move being spelling out a person's rights.

• 28:59Speaker 02

  You have the right to remain silent. Anything you say can be used against you in court.

• 29:04Speaker 05

  You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With those rights in mind, do you wish to speak to me?

• 29:18Rund Abdelfatah?

  And this, as we already know, becomes the Miranda rights. But more importantly, this is the first time the Supreme Court spells out what the Fifth Amendment means when someone is arrested by police and being interrogated.

• 29:32Speaker 02

  Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner at any time prior to or during questioning that he wishes to remain silent, the interrogation must cease. At this point, he has shown that he intends to exercise his Fifth Amendment privilege.

• 29:57Rund Abdelfatah?

  Thirty years after Brown versus Mississippi, the court finally comes to an answer. And there was a lot of criticism from law enforcement officials, saying how this would complicate and make investigations harder and would have an impact on solving crimes. But police now had no choice. They had to give a warning before interrogating a suspect, which might seem pretty clear, but wasn't really.

• 30:22Speaker 04

  Even before Miranda, police had figured out a loophole. If they told suspects their rights from the get-go, it would be harder later on for them to say they were coerced.

• 30:32Speaker 05

  Think about it this way. It's really hard to say that the police broke your will and that you gave an involuntary confession when the police are able to say, actually, we told them that they could remain silent and we told them that anything they said would be held against them. So they were insulating themselves from voluntariness claims by giving warnings.

• 30:57Speaker 04

  The police were basically saying, we gave you your rights. And so anything you say after this is on you, not on us. And on top of that, there were other loopholes.

• 31:09Speaker 02

  The Miranda warning only applies when the suspect's in custody, which roughly speaking means under arrest.

• 31:16Speaker 05

  It's like, well, if I don't arrest them first, if I just question them, are they entitled to Miranda? No. What about if I just arrest them but do not interrogate them? Entitled to Miranda? No.

• 31:28Speaker 02

  And so they can question you at the coffee shop, or they can question you when you're leaning against the police cruiser. Not really in custody yet. You can be in handcuffs and still not be under arrest if you're out on the street. And, you know, there are a lot of cases about are you under arrest yet or not? So there's a lot of questioning by police that doesn't require the warning.

• 31:47Speaker 04

  And the kicker? Even after Miranda rights requirements went into effect, police were still getting confessions. A lot of confessions.

• 31:57Speaker 05

  So I was looking up just the local media and what they were saying at the time. And one story says, quote, "For the police at least, perhaps the most interesting news is that warnings by no means stop confessions."

• 32:12Speaker 02

  In Philadelphia last October, police began giving verbal warnings as soon as they suspected anyone of being involved. By last month, 76% of all felony suspects had nonetheless made voluntary statements.

• 32:28Rund Abdelfatah?

  OK, so the Supreme Court knew they needed Miranda rights to give guidance when it came to police interrogations. But at the same time, they also knew that it wouldn't hinder police too much in getting confessions. So what gives? Why at this moment do they decide to make this ruling? Why not just wait another 30 years to come up with some guidance?

• 32:50Speaker 02

  The Commission on Civil Rights in 1961 found much evidence to indicate that some policemen still resort to physical force to obtain confessions. The use of physical brutality and violence is not unfortunately relegated to the past or to any part of the country.

• 33:10Speaker 05

  Why did the Supreme Court decide Miranda when it did? Well, you know, one thing we might want to think about is that in 1963, we had, you know, Birmingham, and in 1965, we have Selma. And people at the time that were seeing this.

• 33:29Speaker 05

  Were horrified. And the natural question was, well, if this is what the police are doing in front of everyone with live TV rolling, what are they doing behind closed doors? And by 1966, the year Miranda is decided, there's a police spokesman who's quoted in the New York Times, and he says, and I quote, "Never before in the 150-year history of law enforcement has police stock been at a lower point. Never before have the police been under such constant and largely undeserved

• 34:09Speaker 05

  criticism. Never before have public expressions of confidence in the police been so meager. This is the time when we're seeing civilian review boards started to hear complaints of police brutality. And so it's all figuring in when you think about what's happening in that moment in time. Of course, the Supreme Court's going to put restraints.

• 34:30Rund Abdelfatah?

  I think that also gets a sort of a reality, which is that the same way that the context of this moment, when Miranda is decided, is one in which there's more scrutiny on police, you then have sort of the emergence of a kind of law and order platform that, you know, subsequent presidents take on. So I'm wondering how, over the next few decades, that sort of more rigid approach is affecting how people are thinking about the Fifth Amendment and the Miranda rights, the right to remain silent.

• 35:04Speaker 05

  That's a great question, because certainly, the country took a hard pivot. And it basically took it right after Miranda. In 1966, when Miranda is decided, crime is not showing up anywhere on Gallup's annual poll of what's the most important problem in the country. By 1968, it's the number one problem on the Gallup polls. So you see this really hard pivot. President Nixon wins the 68 election, runs on a law and order campaign.

• 35:41Speaker 05

  He is able to appoint four justices in four years. Imagine that. And so then we have what we call the counter-revolution in criminal justice, where the court becomes increasingly conservative over time and starts cutting back on Miranda rights and crippling Miranda rights at basically every turn.

• 36:07Rund Abdelfatah?

  Coming up, Miranda takes a hit.

• 36:23Speaker 02

  Hi, my name is Brandon Forder. I live in Groveland, Florida. You're listening to Throughline from NPR.

• 36:30Speaker 06

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• 36:34Speaker 02

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• 37:18Speaker 02

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• 37:48Speaker 04

  The right to remain silent if you know how to use it.

• 37:57Speaker 04

  January 10th, 2000, Southfield, Michigan, 9:00 PM. Two men sit in their car at a strip mall parking lot.

• 38:14Speaker 04

  A van pulls up to the car, rolls down the window,

• 38:20Speaker 04

  and sprays the car with bullets.

• 38:25Speaker 04

  The van speeds away.

• 38:32Speaker 04

  One person is killed, the other severely wounded.

• 38:39Rund Abdelfatah?

  Police investigation quickly pointed to two suspects. One of them named Van Chester Tompkins. But the police couldn't find Tompkins following the shooting. He managed to evade police for over a year, until he was finally caught outside of Michigan.

• 38:56Speaker 02

  So Tompkins was charged with a drive-by shooting. There was a murder and another fellow was badly hurt. And Tompkins was arrested in Ohio, and the Michigan detective went down to Ohio to question Tompkins there. And gives the Miranda warning.

• 39:16Speaker 05

  You have the right to remain silent. Anything you say can and will be used against you in a court of law. The police read Tompkins his Miranda rights, and he doesn't say anything. You know, so imagine what that looks like. They say, "You have the right to silence. You know, anything you say may be held against you, blah, blah, blah." And so he just is silent. He just sits silent.

• 39:41Speaker 02

  But never says, "I'm waiving my Miranda rights." Never signs the card.

• 39:46Speaker 05

  Usually, there's this form, or at least there was until this case. So there was this form where they read you your rights, and then they give you the form saying, "I understand my rights."

• 39:59Speaker 02

  And he doesn't say anything.

• 39:59Speaker 05

  They are interrogating him. And even the police say, well, it was nearly a monologue, right? So for three hours, he just sits there, silent, as they're accusing him, doing all these things.

• 40:15Speaker 02

  He makes a few kind of one-word answers or shakes his head, but he does not engage in any kind of conversation with the detective. Until after hours.

• 40:27Speaker 05

  The police turn to what they called a spiritual approach, an appeal to his conscience and religious beliefs. So they ask him, do you believe in God? And he says, yes. And then they say, do you pray to God? And he says, yes. And then they say, did you ask God to forgive you for shooting the victim? And he says, yes. Oops, there it is.

• 40:54Rund Abdelfatah?

  Like the other big cases we've talked about, this one followed a familiar path. The state court found Tompkins guilty. The Tompkins would end up appealing, his case eventually going up to the Supreme Court. And this is where our understanding of the Fifth Amendment changes again. We'll hear argument first this morning in case 081470, Burgess versus Tompkins.

• 41:18Speaker 05

  He says, look, I asserted my right to silence. So when I assert the right to silence, the police have to quit questioning me. They have to stop questioning me. They told me I had the right to silence, and I was silent.

• 41:33Speaker 02

  So then the question becomes, is it reasonable for a state court to say after two hours and 15 minutes of asking questions and he says nothing, is it reasonable to hold that he has not concluded, that he has not waived his rights?

• 41:50Speaker 04

  That was former Supreme Court Justice Stephen Breyer speaking.

• 41:55Speaker 05

  When we get to Burgess, you know, this notion of you have to assert your rights. So if the police tell you, you have the right to remain silent, can you just be silent? Is that how you assert your rights? Or can you say, I want my right to silence, or I plead the Fifth? Is that enough? And that's what the question becomes.

• 42:18Speaker 02

  Nothing the police had done had undermined. Why should the police have to play this game of, you know, an hour and a half, two hours?

• 42:24Speaker 06

  Two hours and 15 minutes, five hours, seven hours?

• 42:27Speaker 04

  This is former Justice Antonin Scalia speaking.

• 42:31Speaker 06

  Why don't we have just a clear rule? You read your rights. If you don't want to be questioned, all you have to say is, "I don't want to be questioned."

• 42:40Speaker 04

  The way he phrases this is key. If you don't want to be questioned, you have to say so.

• 42:46Speaker 05

  That's exactly what the Supreme Court says about that claim. The court says, "You have to assert your right in order to stop questioning." And if you don't, if you don't do it clearly and unequivocally, the court says, the police can just roll on.

• 43:07Speaker 02

  To invoke the Miranda right to remain silent, an accused must do so unambiguously.

• 43:12Speaker 04

  That was Justice Anthony Kennedy giving the opinion announcement. Like the Miranda v. Arizona case, it was another 5-4 split decision.

• 43:21Speaker 02

  Tompkins did not say that he wanted to remain silent or that he did not want to talk with the police. Had he made either of these simple statements, he would have invoked his right to cut off questioning.

• 43:30Rund Abdelfatah?

  But he didn't. So he was out of luck. Tompkins loses his case. And after this, the rule now was, you can't exercise your Fifth Amendment right to remain silent by just being silent. You have to say that you want to remain silent.

• 43:50Speaker 05

  So, listen, Burgess is 2010, and it spawns this really quite remarkable little line of cases. In 2017, there's this case out of Louisiana where the defendant gets read his Miranda rights and says, "I want a lawyer dog." And the Supreme Court of Louisiana says, "We don't have lawyer dogs." And so therefore, you did not clearly and unequivocally assert your rights.

• 44:26Speaker 05

  And so, you know, it's just insanity.

• 44:29Rund Abdelfatah?

  It sounds like you have to speak up and you also have to speak up in a very specific way.

• 44:35Speaker 05

  Absolutely. And, you know, the irony of this, of course, is that the entire point of Miranda warnings was, we want to tell suspects what their rights are so that they know. So we do that, but there are all these like little special hidden rules that you have to follow in order to access the rights. And that's not part of the warning. So, you know, the thing you already know from watching TV, that much they tell you. But the stuff that you need to know to access the rights, we're not going to tell you that.

• 45:11Speaker 04

  And the people that do know how to speak up and exercise their Miranda rights are generally people with experience.

• 45:18Speaker 02

  The more time you've been arrested, the more convictions you have, the more you know that these people are from the government, but they're not here to help you. The white collar defendants who've been educated and have talked with lawyers in the past, they know that they should invoke the right to counsel. And people who are professional criminals and have been through the system a few times, they know that they should invoke the right to counsel.

• 45:37Rund Abdelfatah?

  What are the implications, then, of that decision for the Fifth Amendment and this right to remain silent?

• 45:44Speaker 05

  I think it's really great that we're talking about this decision because so many people think you have these rights. And it's like, well, you have the right to be warned of this rights? And you already knew those warnings anyway. But accessing the rights, that's something we really ought to talk about because people just think, oh, I've got them. And it's like, well, no, you have to speak with specificity.

• 46:11Rund Abdelfatah?

  I mean, perhaps this is like a slightly dramatic statement, but like, or question, but, I mean, do we still have the right to remain silent as we understand it?

• 46:22Speaker 05

  When I think of Miranda today, I think it's this sort of Frankenstein version of what it used to be. It's been clipped, you know, so much and misshapen, is so misshapen now, that it's really lost its ability to...

• 46:43Speaker 05

  You know, do much good or, you know, for critics, much evil. And so what remains is those four warnings, which are so embedded in our culture that I'm not sure the Supreme Court could get rid of them, even if it tried.

• 47:02Rund Abdelfatah?

  You know, thinking about where we started, the fact that the framers in their time, there wasn't this sort of national, like, police presence in the way that we obviously have it today. We weren't urbanized yet. It was an extremely rural country. You know, black people didn't, many were still enslaved and many others didn't have, you know, the right to vote or any other of these rights that were enshrined in the Constitution, the Bill of Rights. The country looked extremely different, is I guess what I'm trying to say. And so I'm curious, you know, from that time to today, what this history through the lens of the Fifth Amendment tells us about our relationship as citizens to our government?

• 47:47Speaker 02

  Well, I mean, it's a beautiful illustration of the tension between fear and loyalty, right? I mean, we all are socialized to support our government and defend it with our blood if need be and to pay our taxes and so forth. But on the other hand, we also have a justified fear of government overreaching, government discrimination, government brutality. And the general problem is one about how we have the benefits of law while minimizing the risks. And it gets to, I think, to the roots of our ambivalence about the whole right to remain silent. We wanted to put limits on the government's investigative powers, but we also know that

• 48:28Speaker 02

  it is a costly, costly right to have, that it protects a lot of not very nice people who've done some very bad things.

• 48:35Rund Abdelfatah?

  Hmm.

• 48:35Speaker 02

  If it weren't for ambivalence and complexity, there'd be no legal profession. We couldn't make an honest dollar.

• 48:41Speaker 05

  I think the other sort of lesson learned about Miranda is, when it comes to people's relationship with their government, is in some ways, you know, a farce. You watch TV and they give you the Miranda rights and you claim them or, you know, they respect them and it, you know, it feels right and true and good.

• 49:07Speaker 05

  And in practice, the cases that we're seeing are all the different ways where that's not true. If I have to give Miranda rights, well, then maybe I want to arrest him first. Maybe I'll just interrogate him. Or maybe I'll read Miranda rights as I'm arresting them, when their hands are cuffed. So the thing I worry about with Miranda is that people believe that they have more rights vis a vis the government than they actually do, or that we have these like hidden keys and that we haven't told people how to access their rights, which is so ironic, because that was the point of Miranda in the first

• 49:49Speaker 05

  place, is to tell people about their rights. I remember having an interrogator in my criminal procedure class. And he was somebody I worked with as a prosecutor. I brought him in to talk about how they get confessions. And he talked about it. And one of the students raised their hand and said, well, I don't think this is fair. And his answer was, but it's legal. The Supreme Court said I could.

• 50:15Rund Abdelfatah?

  Wow. Fair and legal are not always the same thing, is what they're saying.

• 50:20Speaker 05

  Absolutely. And I've never forgotten that. I see the story of the Fifth Amendment as being more a story about the Supreme Court's relationship with the people and how constitutional provisions that perhaps were designed for one thing can and do grow, and they also shrink.

• 50:58Rund Abdelfatah?

  That's it for this week's show. I'm Randa Abdel Fattah.

• 51:01Speaker 04

  I'm Ramtin Arablouei. And you've been listening to Throughline from NPR.

• 51:06Rund Abdelfatah?

  This episode was produced by me.

• 51:08Speaker 04

  And me, and?

• 51:09Speaker 02

  Lawrence Wu. Julie Kane. Anya Steinberg.

• 51:13Speaker 05

  Casey Minor. Christina Kim.

• 51:15Speaker 02

  Devin Kadyama. Irene Noguera.

• 51:17Rund Abdelfatah?

  Voiceover work in this episode was also done by Blaze Adler-Ivanbrook, Corey Turner, Sarina Devina Garcia, Neil Rausch, Christian Benford, Scott Lane, and Irina Wong. Thanks also to Tracy Macklin and Daniel Medwed for their help on this episode.

• 51:36Speaker 04

  Thank you to Jonette Oakes, Keandre Starling, Johannes Sturgie, Tony Cavan, Nadia Lancy, Edith Chapin, and Colin Campbell.

• 51:46Rund Abdelfatah?

  Fact checking for this episode was done by Kevin Vogel. This episode was mixed by Robert Rodriguez. Music for this episode was composed by Ramtin and his band Drop Electric, which includes-

• 51:57Speaker 05

  Anya Mizani. Naveed Marvi.

• 52:00Speaker 04

  Sho Fujiwara. And finally, if you have an idea or like something you heard on the show, write us at [email protected]. And if you don't already, please follow us on Apple, Spotify, and the NPR app. That way, you'll never miss an episode.

• 52:16Rund Abdelfatah?

  Thanks for listening.

• 52:33Rund Abdelfatah?

  Stay tuned for the following announcements and messages from our sponsors.