When the Right to Remain Silent Depends on the Person's Race

March 22, 2017

Blog: An Appeals Court Argued a Black Man's "Calm Demeanor" Meant He Didn't Invoke His Right to Silence

By Keerthi Potluri, ACLU-NJ Communications Strategist

"That's all I got to say."

This sounds like an assertion of your right to remain silent, doesn't it? The ACLU of New Jersey took on this question in New Jersey Supreme Court on February 27. (Here's a PDF of the brief, if you're interested in reading the whole thing.)

S.S., a Black man in his early 20s, was interrogated about an alleged offense for about an hour before he said, "No, that's all I got to say. That's it." But the interrogation continued. He told the police he was done speaking two more times. The police officers tried to coax a confession, telling him, "I know there's something you need to get out."

And S.S. did what many people do after being questioned for hours, even though he had told them he didn't want to talk: he started answering.

Invoking Your Right to Silence in New Jersey

New Jersey courts have recognized that the right to silence is a fundamental protection the Constitution affords criminal defendants. Unlike federal law, New Jersey law doesn't require suspects to invoke their right to silence clearly and unequivocally.

If a suspect expresses a wish to remain silent during an interrogation, even if the person seems to equivocate, police in our state must either stop questioning or ask clarifying questions to determine whether a suspect has invoked the right to silence.

But that didn't happen in the case of S.S. Though S.S. used language nearly identical to that the New Jersey Supreme Court has previously found sufficient to invoke the right to silence, the New Jersey Appellate Division found that S.S.'s calm tone meant he wasn't actually invoking his right to silence.

The Marshall Project and WNYC's The Takeaway delved deeper into the case of S.S. on March 21. Andrew Cohen of The Marshall Project explained the crux of the issue this way:

"The essential question is this: Can a suspect's tone and demeanor when talking to the police — captured on a grainy video seen years later — mean more to a reviewing judge than the actual words that come out of the suspect's mouth?"

The answer to that question is no: tone and demeanor do not eclipse the words someone says. We hope the New Jersey Supreme Court reverses the appellate court's decision.

Racial Bias Destroys Equal Protection

The words that prompt police to ask if silence is invoked don't change based on tone.

The ACLU of New Jersey's Rebecca Livengood argued at the Supreme Court that relying on tone to find that a suspect has not invoked their rights raises serious concerns under the equal protection guarantees of the New Jersey and federal constitutions.

There are sound, widely acknowledged reasons for S.S. answering questions with a calm and composed demeanor: from a young age, Black boys are told that once they're perceived as Black men, they will need to be as non-threatening as possible to avoid police violence.

S.S. was using a widely acknowledged tactic of self-protection. For law enforcement to claim he didn't mean what he said because of this tone in essence leaves Black men with an impossible choice when interacting with police: speak calmly and have people refuse to take you at your word, or speak firmly and risk being seen as an aggressor.

S.S. was a 24-year-old Black man at the time of his interrogation. As many scholars have observed, and as both President Barack Obama and former Attorney General Eric Holder have testified to, centuries of coercive and violent interactions with police have led Black men to adopt a calm and deferential tone when dealing with law enforcement. If speaking calmly means you cannot invoke your constitutional rights, the future looks grim.

The Appellate Division pointed to these very qualities of S.S.'s tone to rule that S.S. wasn't invoking his right to silence. This reasoning simply can't be squared with constitutional equal protection guarantees.

For the sake of racial justice, we at the ACLU of New Jersey sincerely hope the New Jersey Supreme Court understands the dangers of the appellate court's decision. No matter how calmly we say it, it remains true: denial of equal protection based on race is wrong.

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