Commentary

The End of “The Right to Remain Silent”

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