The End of "The Right to Remain Silent"

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The End of "The Right to Remain Silent"
by Mark Moller



"Any lawyer worth his salt will tell [a] suspect in no uncertain
terms to make no statement to police under any circumstances." So
said Supreme Court Justice Robert Jackson fifty years ago. Strong
words from a man who had served as the Attorney General of the United
States and as the Chief Prosecutor at Nuremburg. Common-sense words,
too: Every kid who has watched a re-run of TV cop shows knows
that "you have the right to remain silent" when the police come
knocking.

Except that, now, you don't. In Hiibel v. Sixth Judicial District of
Nevada, the Supreme Court, in one stroke, turned Justice Jackson's
advice on its head, and turned generations of TV cop shows into so
much false advertising. Silence, said the Court, is not only not
privileged: it can get you thrown in jail.

Hiibel arose out of a set of facts typical of thousands of run-of-the-
mill police investigations. Responding to reports of domestic
battery, police encountered a suspect, Dudley Hiibel. The
investigating officer, after approaching, demanded that Hiibel
identify himself. Hiibel declined. "I feel quite strongly I have a
right to remain silent," Hiibel later explained.

Dudley Hiibel paid a steep price for his stand on principle: The
police arrested Hiibel on the spot, and threw him in jail. The
charge? Not domestic battery, a crime for which the police had no
evidence to arrest. (Hiibel later proved to be innocent). Instead,
Nevada justified the arrest based on a state statute that makes
refusal to provide identification, when stopped by the police, a jail-
able crime.

The unconstitutionality of the Nevada statute should have been a no-
brainer for the Court. Over the last three decades, the Court has
repeatedly held that the "right to remain silent" is an unconditional
constitutional guarantee under the Fourth and Fifth Amendments. In
Davis v. Mississippi, for example, the Court emphasized that it is
a "settled principle" that "the police have . . . no right to compel
[citizens] to answer" police questions. In Terry v. Ohio, the case
that upheld the power of police to briefly stop and
question "suspicious" persons on the street, Justice Byron White
added that: "[A person detained] is not obliged to answer, answers
may not be compelled, and refusal to answer furnishes no basis for an
arrest."

As New York University law professor Stephen Schulhofer has noted,
the "right to remain silent" reflects a core constitutional
principle: namely, that lawful police investigation should rely
on "persuasion and the suspect's overconfidence," rather "pressure
and fear." The privilege of silence guarantees that wiles and smarts,
not intimidation, should define lawful police practice.

Hiibel, however, holds just the opposite: Far from "scrupulously
respecting" the right to remain silent (as the Court's past decisions
require), Hiibel authorizes the police to "sanction" those with the
temerity to exercise their right to silence . . . by hauling
unresponsive citizens to jail. Indeed, the Court appears to
affirmatively condone police use of "threat[s]" and "criminal
sanction" as a "help[ful]" tools of good police investigation. In
Hiibel, "pressure and fear" gain a new purchase on the law of
criminal procedure.

The Court justifies expanded use of police "threats" based on two
grounds: (1) the supposed need to "protect" police officers, and (2)
the notion that compelled disclosure of a name is not "coercive"
within the scope of the constitution, because a name is
not "incriminating." Neither carry water.

The "safety" concern would be less difficult to credit if the Court,
in Terry v. Ohio, had not already authorized police officers to
physically search suspects for weapons—and if dangerous criminals
could be trusted to passively tell police the truth about their
identity on demand.

The second argument is handily disposed by Justice John Paul Stevens,
writing in dissent. If "disclosure of a petitioner's name would
[not] . . . incriminate him," queried Stevens, then "why else would
an officer ask for it? And why would the Nevada Legislature
require . . . disclosure [of a name] only when
circumstances 'reasonably indicate that the person has committed, is
committing or is about to commit a crime?' . . . . The very existence
of the statute demonstrates the value of the information it demands."

Hiibel has one bright spot: The decision could have been worse. The
Court mercifully avoided upholding compelled disclosure of
information beyond a suspect's name. Accordingly, there is hope the
Court may yet strike down the twenty state statutes that demand
suspects give not only names to police, but also an "explanation" of
themselves on demand. The Court also emphasized that the decision
doesn't require a hand over of "driver's license[s] or any other
document." Hiibel accordingly does not green-light the push for a
national identification card.

But these caveats hardly save the opinion. To the contrary, they are
symptoms of the Court's growing fecklessness. For this Court,
recognition of firm protections for civil rights is always on the
horizon, to be protected tomorrow, in the next case. That promise is
wearing thin. Five years ago, Justice Kennedy—often described as
a "bellwether" Justice¯warned that the Court stood at risk of
forgetting "liberty comes . . . from the Constitution by right," and
not from "officials by grace." Flash forward to today: Justice
Kennedy authored Hiibel. Perhaps he has changed his mind.

Hiibel underscores, once again, that when it comes to upholding
constitutional restraints on the State's criminal apparatus, there is
only one sure bet in the modern Court: All bets are off.

This article originally appeared in Liberty Magazine on July 8, 2004.