We the People: The Right to Remain Silent

Summary

Throughline: We the People – The Right to Remain Silent

Release Date: March 27, 2025

Introduction

In the episode titled "We the People: The Right to Remain Silent," NPR's Throughline delves deep into the complexities of the Fifth Amendment of the U.S. Constitution, focusing on the right to remain silent. Hosts Rund Abdelfattah and Ramtin Arablouei explore the historical evolution, legal battles, and contemporary challenges surrounding this fundamental right, shedding light on how it has been interpreted and enforced over the decades.

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Historical Context: Brown v. Mississippi (1936)

The episode begins by revisiting the harrowing case of Brown v. Mississippi, a landmark 1936 Supreme Court decision. In 1934, in Kemper County, Mississippi, Raymond Stewart, a white planter, was found brutally beaten to death. The local police swiftly arrested three African American sharecroppers—Ed Brown, among them—under dubious circumstances.

• Quote: Corinna Barrett Lane states, “Anybody who watches TV, fourth graders can read Miranda rights. And show me another decision where, you know, even children know the rights...” (02:10)

Under the oppressive Jim Crow laws, the suspects were subjected to severe torture, including whipping and mock lynchings, to extract false confessions. Despite the blatant brutality, all three men were convicted and sentenced to death. Their appeals highlighted that their confessions were coerced, violating their Fifth Amendment rights against self-incrimination.

The Role of the 14th Amendment

The conversation transitions to the pivotal role of the 14th Amendment, particularly its Due Process Clause, which extended the protections of the Bill of Rights to the states.

• Quote: Corinna Barrett Lane explains, “The 14th Amendment was like a legal tool that could be used to extend the protections of the Constitution.” (18:07)

This amendment became the cornerstone for challenging state-level abuses, as seen in Brown v. Mississippi, where the Supreme Court ultimately ruled that confessions obtained through violence were inadmissible, establishing the voluntariness test to determine the legitimacy of confessions.

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The Evolution of Miranda v. Arizona (1966)

Despite the Brown decision, coerced confessions persisted, leading to the necessity for clearer guidelines. This gap was addressed by the Miranda v. Arizona case in 1966, which became a transformative moment in policing and constitutional rights.

• Quote: Ramtin Arablouei articulates, “The Supreme Court knew they needed Miranda rights to give guidance when it came to police interrogations.” (34:49)

Miranda established that suspects must be informed of their rights before custodial interrogations, famously encapsulated in the "Miranda rights." These include the right to remain silent and the right to an attorney. The decision aimed to eliminate coercive interrogation practices by ensuring that confessions were truly voluntary.

Challenges and Loopholes Post-Miranda

However, the implementation of Miranda did not entirely prevent coercive practices. Law enforcement found loopholes, such as the precise timing of arrests and interrogations, allowing them to sidestep the requirements of the Miranda warnings.

• Quote: Corinna Barrett Lane observes, “The thing you already know from watching TV, that much they tell you. But the stuff that you need to know to access your rights, we're not going to tell you that.” (44:08)

Further complicating matters, the Supreme Court’s decision in Burgess v. Tompkins (2010) mandated that simply remaining silent without explicitly invoking the right does not halt police questioning. This ruling necessitated a more assertive declaration of one's intent to remain silent to activate Fifth Amendment protections.

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Case Study: Burgess v. Tompkins (2010)

The episode examines the Burgess v. Tompkins case, where Vanchester Tompkins remained silent during police interrogation without explicitly asserting his right to do so. Despite receiving Miranda warnings, Tompkins' passive silence did not qualify as a clear invocation of his rights, resulting in his conviction.

• Quote: Corinna Barrett Lane states, “You have to assert your rights 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.” (42:40)

This case underscored the necessity for suspects to actively and unequivocally state their intention to remain silent, highlighting a significant shift from previous understandings of the right.

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Modern Implications and Public Perception

The hosts discuss the evolving public perception and understanding of Miranda rights, noting a disconnect between the legal framework and public awareness.

• Quote: Corinna Barrett Lane reflects, “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...” (44:44)

Despite widespread cultural recognition of Miranda warnings, many individuals lack the nuanced understanding required to effectively invoke their rights, often leading to unintentional waivers during interrogations.

The Tension Between Government Authority and Individual Rights

The episode delves into the inherent tension between governmental authority and individual rights, emphasizing the delicate balance required to protect citizens without hindering law enforcement.

• Quote: Kalu Njaku articulates, “We all are socialized to support our government and defend it with our blood if need be... but we also have a justified fear of government overreaching...” (47:20)

This duality reflects the broader societal struggle to maximize the benefits of law while minimizing the risks of governmental abuse of power.

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Conclusion: The Ongoing Struggle for Rights Protection

Throughline concludes by highlighting that the story of the Fifth Amendment and the right to remain silent is far from complete. As societal norms and legal interpretations continue to evolve, so too does the landscape of individual rights versus state power.

• Quote: Corinna Barrett Lane poignantly states, “I see the story of the Fifth Amendment as being more a story about the Supreme Court's relationship with the people...” (49:55)

The episode serves as a compelling exploration of constitutional rights, their historical underpinnings, and the persistent challenges in safeguarding them within an ever-changing societal framework.

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Key Takeaways:

1. Historical Abuse: The Brown v. Mississippi case exemplifies the severe violations of the Fifth Amendment through coerced confessions during the Jim Crow era.
2. 14th Amendment's Role: The Due Process Clause was instrumental in extending federal protections to state-level prosecutions, laying the groundwork for future reforms.
3. Miranda Rights: Established to protect suspects during interrogations, Miranda rights aim to ensure confessions are voluntary and informed.
4. Legal Loopholes: Subsequent rulings, like Burgess v. Tompkins, reveal complexities and limitations in the application of Miranda rights, necessitating more explicit assertions by suspects.
5. Public Awareness: There remains a significant gap between the recognition of Miranda rights and the public's understanding of how to effectively utilize them.
6. Ongoing Debate: The balance between effective law enforcement and the protection of individual rights continues to be a contentious and evolving issue.

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Reflections by Legal Experts:

Throughout the episode, legal scholars such as Corinna Barrett Lane and Donald Dripps provide insightful analyses on the implications of these legal decisions and their impact on both the justice system and individual freedoms. Their expertise helps unpack the intricate legal doctrines and societal factors that shape the ongoing discourse around the right to remain silent.

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Final Thoughts

"We the People: The Right to Remain Silent" encapsulates the enduring struggle to define and defend individual rights within the American legal system. By tracing the historical milestones and examining modern challenges, Throughline offers listeners a comprehensive understanding of how the Fifth Amendment continues to influence and be influenced by the societal and legal landscapes of the United States.

Transcript

[Ramtin Arablouei]

This message comes from NPR sponsor FX presenting Dying for Sex, a new series starring Michelle Williams, Jenny Slate, Rob Delaney, Jay Duplass and Sissy Spacek. FX's Dying for Sex. All episodes streaming April 4th on Hulu.

[Rend Abdelfattah]

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

[Corinna Barrett Lane]

Took his coat off.

[Donald Dripps]

Now he's wearing a blue shirt with.

[Corinna Barrett Lane]

Number 15 on it.

[Donald Dripps]

Heading northbound through the compost.

[Ramtin Arablouei]

You have a right to remain silent. Dexter Morgan, you have the right to remain silent. Hey, you're not really arresting me. You have the right to remain silent.

[Corinna Barrett Lane]

Walter White, you have the right to remain silent.

[Rend Abdelfattah]

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. Story. Maybe you even know the rest of it, too.

[Kalu Njaku]

You have the right to remain silent. Anything you say can and will be.

[Rend Abdelfattah]

Used against you in a court of law.

[Ramtin Arablouei]

You have the right to an attorney. If you cannot afford one, an attorney will be provided for you. All right.

[Corinna Barrett Lane]

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, the.

[Ramtin Arablouei]

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

[Corinna Barrett Lane]

Start interrogating you 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.

[Ramtin Arablouei]

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

[Corinna Barrett Lane]

And yet the vast majority of suspects waive their rights and talk to the police. And so there's a mystery there, right? Like, how does that work? What happened?

[Ramtin Arablouei]

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 have 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.

[Rend Abdelfattah]

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 I5 highway, told to step out of their vehicle, questioned and placed under arrest by officers with guns.

[Ramtin Arablouei]

I'm Ramtin Arablouei.

[Rend Abdelfattah]

And I'm Rend Abdelfattah 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 U.S. constitution, why they were created, how they've been enforced, and why fights over their meaning continue to shape life in the United States.

[Ramtin Arablouei]

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

[Kalu Njaku]

My name is Kalu Njaku and you are listening to who I 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.

[Ramtin Arablouei]

I'm so thankful for you guys.

[Kalu Njaku]

You all keep me so hungry for knowledge and I wish you guys the best.

[Donald Dripps]

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[Corinna Barrett Lane]

Part 1 the Cruel Trilemma.

[Rend Abdelfattah]

It was a spring day in 1934, Kemper County, Mississippi. 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 Dripps. He's a law professor at the University of San Diego.

[Kalu Njaku]

The deputies immediately focused on three African Americans.

[Rend Abdelfattah]

The primary suspect, Ed Brown, was a 30 year old black sharecropper who worked on Stewart's farm. Police also believe 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.

[Kalu Njaku]

The trial took place shortly after the.

[Ramtin Arablouei]

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

[Kalu Njaku]

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

[Ramtin Arablouei]

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

[Corinna Barrett Lane]

And the deputy sheriff takes the stand.

[Rend Abdelfattah]

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

[Corinna Barrett Lane]

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.

[Kalu Njaku]

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

[Corinna Barrett Lane]

But not too much for a Negro.

[Kalu Njaku]

There was no effort to deny this right.

[Rend Abdelfattah]

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.

[Ramtin Arablouei]

And the case went up to the Mississippi Supreme Court.

[Corinna Barrett Lane]

So the Mississippi Supreme Court affirms the.

[Ramtin Arablouei]

Convictions, even though one of the judges on the state Supreme Court dissented, saying the transcript reads more like pages torn.

[Corinna Barrett Lane]

From some medieval account.

[Ramtin Arablouei]

The so called trial was never a.

[Corinna Barrett Lane]

Legitimate proceeding from beginning to end.

[Ramtin Arablouei]

It was never anything but a fictitious.

[Corinna Barrett Lane]

Continuation of the mob which originally instituted.

[Kalu Njaku]

And engaged in the admitted tortures, like something out of a medieval torture manual, not from an American courtroom.

[Ramtin Arablouei]

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.

[Rend Abdelfattah]

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.

[Kalu Njaku]

First, it says no person shall be held to answer for a capital or otherwise infamous crime unless on presentment or indictment.

[Ramtin Arablouei]

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

[Kalu Njaku]

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

[Ramtin Arablouei]

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

[Rend Abdelfattah]

And finally, the most important part for our purposes in this episode, nor shall.

[Corinna Barrett Lane]

Be compelled in any criminal case to be a witness against himself.

[Ramtin Arablouei]

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

[Corinna Barrett Lane]

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.

[Ramtin Arablouei]

But at the time the defendants in Brown v. 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.

[Rend Abdelfattah]

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?

[Ramtin Arablouei]

They meet in 89, 1789, that is.

[Kalu Njaku]

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 as 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.

[Rend Abdelfattah]

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.

[Kalu Njaku]

There was a contemporary practice on the continent of Europe where the criminal process relied literally on juridical torture.

[Rend Abdelfattah]

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.

[Kalu Njaku]

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, 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.

[Rend Abdelfattah]

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 the Star Chamber.

[Ramtin Arablouei]

The Star Chamber, which actually sounds like something right out of a sci fi movie, but. 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.

[Kalu Njaku]

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.

[Ramtin Arablouei]

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.

[Corinna Barrett Lane]

Be known as the cruel trilemma.

[Ramtin Arablouei]

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.

[Corinna Barrett Lane]

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.

[Rend Abdelfattah]

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

[Kalu Njaku]

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.

[Rend Abdelfattah]

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.

[Corinna Barrett Lane]

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.

[Rend Abdelfattah]

Most people charged with the 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.

[Kalu Njaku]

One of the things that's ironic about it or difficult to get your head around is that we didn't have 247 uniformed police in this country until 50 or 60 years after the Fifth Amendment was 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.

[Ramtin Arablouei]

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.

[Corinna Barrett Lane]

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?

[Ramtin Arablouei]

The answer was within a brand new.

[Corinna Barrett Lane]

Amendment, the 14th amendment.

[Ramtin Arablouei]

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.

[Rend Abdelfattah]

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.

[Corinna Barrett Lane]

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

[Rend Abdelfattah]

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

[Corinna Barrett Lane]

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

[Ramtin Arablouei]

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

[Corinna Barrett Lane]

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.

[Ramtin Arablouei]

And one of the cases where the court applied the 14th amendment was Brown.

[Corinna Barrett Lane]

Versus Mississippi in 1936.

[Ramtin Arablouei]

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. The question in this case is whether convictions which rest solely upon confessions shown.

[Corinna Barrett Lane]

To have been extorted by officers of.

[Ramtin Arablouei]

The state by brutality and violence are.

[Corinna Barrett Lane]

Consistent with the due process of the.

[Kalu Njaku]

Law required by the 14th amendment.

[Corinna Barrett Lane]

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.

[Kalu Njaku]

Coercing the supposed state's criminals into confessions and using such confessions so coerced from.

[Ramtin Arablouei]

Them against them in trial has been the curse of all countries. The supreme court reverses the men's convictions.

[Corinna Barrett Lane]

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

[Ramtin Arablouei]

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

[Kalu Njaku]

It was the crowning infamy of the.

[Ramtin Arablouei]

Star chamber and the inquisition and similar institutions. The Constitution recognized the evils that lay behind these practices and prohibited them in this country.

[Corinna Barrett Lane]

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

[Rend Abdelfattah]

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

[Corinna Barrett Lane]

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. The supreme court recognizes it, states it for the very first time in Brown versus Mississippi.

[Rend Abdelfattah]

So great. End of story. Right.

[Corinna Barrett Lane]

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?

[Ramtin Arablouei]

That's coming up. Hi, this is Mahmoud Dijama. I'm calling from the great city of Seattle, and you listen through life from npr.

[Donald Dripps]

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[Corinna Barrett Lane]

Part 2 the right to Remain silent.

[Ramtin Arablouei]

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. So let's get going before somebody leaves you holding the bag. 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. But if you wait until the other fellow has his say, no one's going to believe your story, even when you do decide to tell the truth. Lie Detection and criminal interrogation manual, 1950 so in Brown vs 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.

[Corinna Barrett Lane]

Hours 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.

[Ramtin Arablouei]

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.

[Rend Abdelfattah]

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, Miranda versus Arizona. Ernesto Miranda was arrested for kidnapping and rape.

[Kalu Njaku]

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

[Rend Abdelfattah]

He confessed to both.

[Kalu Njaku]

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

[Rend Abdelfattah]

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.

[Kalu Njaku]

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 happens in this case, and so forth.

[Rend Abdelfattah]

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.

[Ramtin Arablouei]

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.

[Corinna Barrett Lane]

And what the Court says is, listen, we've said for a long time, we've said since Brown vs Mississippi that a confession must be voluntary.

[Ramtin Arablouei]

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. 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.

[Corinna Barrett Lane]

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, meaning you're.

[Ramtin Arablouei]

In custody of police being interrogated and you can't leave.

[Corinna Barrett Lane]

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.

[Ramtin Arablouei]

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

[Corinna Barrett Lane]

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, that.

[Rend Abdelfattah]

Magical move being spelling out a person's rights.

[Kalu Njaku]

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

[Corinna Barrett Lane]

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?

[Rend Abdelfattah]

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.

[Ramtin Arablouei]

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.

[Rend Abdelfattah]

Thirty years after Brown v. 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.

[Ramtin Arablouei]

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.

[Corinna Barrett Lane]

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.

[Ramtin Arablouei]

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.

[Kalu Njaku]

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

[Corinna Barrett Lane]

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.

[Kalu Njaku]

And so they can question you at the coffee shop, or they can question you when you're leaning against the police cruiser. You're 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.

[Ramtin Arablouei]

And the kicker, even after Miranda rights requirements went into effect, police were still getting confessions, a lot of confessions.

[Corinna Barrett Lane]

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.

[Rend Abdelfattah]

In Philadelphia last October, police began giving verbal warnings as soon as they suspected.

[Corinna Barrett Lane]

Anyone of being involved.

[Rend Abdelfattah]

By last month, 76% of all felony.

[Corinna Barrett Lane]

Suspects had nonetheless made voluntary statements.

[Rend Abdelfattah]

Okay, 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?

[Ramtin Arablouei]

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.

[Corinna Barrett Lane]

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 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 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 start 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 gonna put restraints.

[Rend Abdelfattah]

I think that also gets at 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 this and the Miranda rights, the right to remain silent.

[Corinna Barrett Lane]

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. 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.

[Rend Abdelfattah]

Coming up, Miranda takes a hit.

[Corinna Barrett Lane]

Hi, my name is Brandon Forder.

[Kalu Njaku]

I live in Groveland, Florida. You're listening to Throughline from npr.

[Donald Dripps]

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[Corinna Barrett Lane]

Part three, the right to remain silent, if you know how to use it.

[Ramtin Arablouei]

January 10, 2000, Southfield, Michigan. 9:00pm Two men sit in their car at a strip mall parking lot. A van pulls up to the car, rolls down the window and sprays the car with bullets. The van speeds away. One person is killed, the other severely wounded.

[Rend Abdelfattah]

Police investigation quickly pointed to two suspects, one of them named Vanchester 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.

[Kalu Njaku]

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.

[Rend Abdelfattah]

You have the right to remain silent. Anything you say can and will be used against you in a court of law.

[Corinna Barrett Lane]

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.

[Kalu Njaku]

He just sits silent, but never says, I'm waiving my Miranda rights. Never signs the card.

[Corinna Barrett Lane]

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.

[Kalu Njaku]

And he doesn't say anything.

[Corinna Barrett Lane]

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 and doing all these things.

[Kalu Njaku]

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.

[Corinna Barrett Lane]

The police turn to what they called a spiritual approach and 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.

[Rend Abdelfattah]

Like the other big cases we've talked about, this one followed a familiar path. The state court found Tompkins guilty, but 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.

[Kalu Njaku]

We'll hear argument first this morning in case 08, 1470 Burgius vs. Tompkins.

[Corinna Barrett Lane]

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 to Write to silence. And I was silent. So then the question becomes, is it.

[Ramtin Arablouei]

Reasonable for a state court to say after 2 hours and 15 minutes of asking questions, and he says, no, nothing. Is it reasonable to hold that he has not, to conclude that he has not waived his rights? That was former Supreme Court Justice Stephen Breyer speaking.

[Corinna Barrett Lane]

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. Nothing the police had done had under.

[Kalu Njaku]

Should the police have to play this.

[Ramtin Arablouei]

Game of, you know, an hour and a half, two hours, two hours and 15 minutes, five hours, seven hours? This is former Justice Antonin Scalia speaking.

[Kalu Njaku]

Why. Why don't we have just a clear rule? You read your rights. If you don't.

[Ramtin Arablouei]

If you don't want to be questioned.

[Kalu Njaku]

All you have to say is, I.

[Ramtin Arablouei]

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

[Corinna Barrett Lane]

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.

[Kalu Njaku]

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

[Ramtin Arablouei]

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

[Kalu Njaku]

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.

[Rend Abdelfattah]

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.

[Corinna Barrett Lane]

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

[Rend Abdelfattah]

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

[Corinna Barrett Lane]

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. 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.

[Ramtin Arablouei]

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

[Kalu Njaku]

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 caught 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.

[Rend Abdelfattah]

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

[Corinna Barrett Lane]

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 these 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.

[Rend Abdelfattah]

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?

[Corinna Barrett Lane]

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 misshape is so misshapen now that it's really lost its ability to, you know, do much good or, you know, for critics, much evil. And so what remains is those forewarnings which are so embedded in our culture that I'm not sure the Supreme Court could get rid of them even if it tried.

[Rend Abdelfattah]

You know, thinking about where we started at 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.

[Kalu Njaku]

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 want it to put limits on the government's investigative powers, but we also know that it is a costly right to have that. It protects a lot of not very nice people who've done some very bad things. If it weren't for ambivalence and complexity, there'd be no legal profession. We couldn't make an honest dollar.

[Corinna Barrett Lane]

I think the other sort of lesson learned about Miranda 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. 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 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 wow.

[Rend Abdelfattah]

Fair and legal are not always the same thing as what they're saying.

[Corinna Barrett Lane]

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.

[Rend Abdelfattah]

That's it for this week's show. I'm Runt Abdelfatah Ramtin.

[Ramtin Arablouei]

I'm Ramtin Arablouei and you've been listening to Throughline from npr.

[Rend Abdelfattah]

This episode was produced by me and.

[Ramtin Arablouei]

Me and Lawrence Wu, Julie Kane, Anya.

[Corinna Barrett Lane]

Steinberg, Casey Meiner, Christina Kim, Devin Kadayama.

[Rend Abdelfattah]

Irene Noguchi voiceover work in this episode was also done by Blaise Adler Ivanbrook, Cory Turner, Sarina Divina, Gracia, Neil Rouse, Christian Benford, Scott Lane, and Irina Wong. Thanks also to Tracy Macklin and Daniel Medwet for their help on this episode.

[Ramtin Arablouei]

Thank you to Johnette Oakes, Keandre Starling, Johannes Durgi, Tony Cavan, Nadia Lanci, Edith Chapin and Colin Campbell.

[Rend Abdelfattah]

Fact checking for this episode was done by Kevin Voelkel. This episode was mixed by Robert Rodriguez. Music for this episode was composed composed by Ramtin and his band Drop Electric, which includes Anya Mizani, Naveed Marvi, Sho Fujiwara.

[Ramtin Arablouei]

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

[Rend Abdelfattah]

Thanks for listening.

[Donald Dripps]

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[Ramtin Arablouei]

This message comes from Tourism Australia. No matter what you're into, Australia has something for everyone all year round like the Daintree Rainforest this spring, Melbourne's music scene in the summer and the wineries of Barossa Valley in the winter. Come and say G'day [e-mail].

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