If there is any doubt about the suspect's preference, the court established, it will be taken as consent to be questioned. If Kennedy were to try to strike up a conversation with someone at a bar, only to be ignored, he would assume she was dying to hear more.
Such obtuse logic is impossible to square with the 1966 Miranda decision, where the justices explained the psychological reality of a police interrogation. Someone being held involuntarily in a station house, they knew, will tend to assume that he must cooperate or suffer painful consequences.
The Miranda warning is one way to convey to the suspect -- and the cops -- that he has rights they must respect. "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," declared the court.
But just giving the warning is not enough. The court stressed that the police may not exploit ambiguities to nullify its effects.
"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," it said. "If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination..." (my emphasis)
Not anymore, it doesn't. Now, says the court, it is the duty of any accused person "who wants to invoke his or her right to remain silent to do so unambiguously." The "heavy burden" lands on the suspect. If cops can trick him or wear him down, the justices say: Good for them.
Once upon a time, the Supreme Court tried to make sure that Americans under police suspicion could freely decide whether to exercise their constitutionally protected right against self-incrimination. I'm waiting to hear Kennedy and Co. express any similar commitment. And their silence is deafening.