The Miranda warnings remind suspects of their right to remain silent but were never particularly clear on what happens when a suspect actually stays silent. Can the police question the suspect? If so, can they do they so for just a few minutes or as long as they want?
The court’s 5-to-4 opinion in the case of Berghuis v. Thompkins said that a suspect who wants the police to stop an interrogation must explicitly invoke the right to remain silent. Otherwise, Justice Anthony Kennedy wrote for the majority, the questioning can continue.
As this editorial points out, SCOTUS left some important questions unanswered, such as how long can questioning continue? But the logic of this decision was lost on the Court's majority - the accused has to speak up in order to enjoy the privilege of silence. The Court could have directed police to inform suspects that their right to remain silent is no longer an invocation of their 5th Amendment rights. But the majority elected to keep police and suspects guessing.
The fact that decisions like Miranda have not hurt criminal prosecutions, but have led to vast improvements in police procedures is totally lost on the Court's conservatives.
More commentary on this tragic decision.