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A T-Shirt to Save Miranda

By Tom W. Bell and Glen Whitman

Professor Crim Pro I ain't, but it seems to me that anybody who has used a computer can pretty easily grasp the holding of Berghuis v. Thompkins, 560 U.S. __, No. 08-1470 (June 1, 2010) [PDF]. In that opinion, handed down just yesterday, the U.S. Supreme Court toggled the default on the Miranda warning. A five-justice majority held that silence will not suffice for citizens who want to invoke Miranda's protections against self-incrimination; we now must ask for our Constitutional rights. Think of it like a computer program that annoyingly assumes you want unsolicited advice from a chirpy paper clip--except this paper clip throws you in cuffs and tazes you if you talk back.

The Berghuis decision inspires me to offer a new piece of legal armor?this time in the form of a t-shirt:

Click on the picture to buy a shirt, or borrow the text (I've uncopyrighted it) to make your own version from scratch. Combine that notice of your Miranda rights with the bumper sticker and magnetic sign I offered earlier, in defense of your rights to record and report what public officials do to you, and you might just dodge some serious legal hurt. Or?who knows??you might inspire some interesting and important litigation.

I leave detailed analysis of how Berghuis jibes with Miranda and other precedents to other, more knowledgeable commentators (see supra, "ain't Prof. Crim Pro" disclaimer). I dare say, though, that Justice Sotomayor's dissent hit a nice note:

Today?s decision turns Miranda upside down. Criminal suspects must now unambiguously invoke their right to remain silent?which, counterintuitively, requires them to speak. At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded.

Slip. op. at 23 (Sotomayor, J. dissenting).

I guess that you could say the Berghuis majority took a cue from the (so-called) libertarian paternalists and engaged in some legal nudging. In this case, however, the Court nudged our defaults away from individual liberty and toward prosecutorial power. Call it statist paternalism.

Thanks, Supremes, for giving us worse than nothing. Ah, well. As I read Berghuis, even the justices in the majority would not deny us the opportunity to answer their new default with a firm "No!" Thus might we recover our Constitutional rights with a t-shirt.

[Crossposted at Agoraphilia and The Technology Liberation Front.]

Full post as published by Agoraphilia on June 03, 2010 (boomark / email).