You Have the Right to the Silent Treatment

Posted in: Criminal Procedure

As a teenager, I lived with my mom. My dad had passed away when I was younger, so it was just the two of us girls. My mother had many admirable qualities, including loyalty, industriousness, affection, creativity, generosity, intelligence, and courage. But she sometimes gave me the silent treatment.

Though I violated my mother’s rules and otherwise upset her on many occasions, she never once grounded me. She did not deny me new clothing, school supplies, or opportunities to socialize with my friends. When she wanted to punish me, she deprived me of her attention.

At the time, my friends said I was lucky. I did not especially want my mom’s attention, and I got to keep my privileges, even when I was out all night and failed to call or otherwise supply proof of life. I had it made. And yet I would have given anything in those days to escape the silent treatment.

My mom would walk around our apartment and simply pretend that she did not see or hear me, avoiding eye contact and proceeding as though I were not there. I have since learned that professionals regard the silent treatment as abusive behavior.

The silent treatment as an official term originated in its use in nineteenth-century prisons as a replacement for physical punishment. The idea was to manipulate prisoners without having to hit or beat them, and the treatment seemed like an attractive alternative.

In 1966, after the U.S. Supreme Court decided Miranda v. Arizona and gave arrested individuals the “right to remain silent,” familiar to virtually all Americans and others as well, many properly Mirandized arrestees talked to the police and even confessed notwithstanding the warnings. Estimates differ, but some say that Miranda did not substantially change the confession rate. Why would that be?

Below, I offer the silent treatment as a possibility. I present the hypothesis that criminal suspects react to the police in the way that I reacted to my mother.

Theories for Why the Statements Kept Coming

In Justice White’s dissent from Miranda, he suggested that the majority was exhibiting a hostility to the confession as a valid instrument of law enforcement. Once a suspect had heard not only that he could remain silent but that he was entitled to an attorney, he would refuse to tell police about his crimes. White, however, turned out to be a Chicken Little in the end. The confessions kept on coming in, if perhaps at a somewhat slower rate.

One explanation had to do with the coercive environment of custodial interrogation. Even after receiving the warnings, which, after all, the interrogators themselves administer, suspects might still lack a sense of agency over what happens to them while in custody. Many might not feel like they truly have the “right” to remain silent when intimidating and armed authority figures are standing around acting like “it’ll go better for you if you just fess up.”

I think there is something to this hypothesis. My goal here is not to debunk everything anyone has said about confessions. But I wonder whether something else might be happening, either in addition to that, or perhaps, for different suspects, instead. The Miranda opinion hints at a second possibility.

During the warnings, after telling a suspect that he has the right to remain silent, police must also inform him that anything he says will be used against him in court. The two ideas are in some tension. One tells the person “don’t think that you must talk just because these authority figures are detaining you; you can be quiet and they have to leave you alone.” The second says “you know, there are consequences to talking, so if you feel comfortable enough to chat with these guys, remember that they are actually the enemy and will use what you say to try to convict you of a crime.” If you are very scared of the police and feel a little coerced by their interrogation, then why do you need anyone to tell you that speaking could be detrimental? Are you too scared to assert your rights or are you too trusting to realize that you should?

The second idea picks up on the notion that you might be looking at the police as something other than a source of discipline and harshness. You might feel like talking to them because you think they could be open to your point of view; perhaps you can persuade them of your innocence and explain why things misleadingly look as bad they do. For those who trust the police, the warnings say that every word you utter will become evidence for the prosecution. These officers are not your friends.

This too likely explains some of what happens to people when they are under arrest. The police could include people who look or sound like the suspect, so the suspect might feel that he is among friends. And police know how to manipulate suspects to bring about just this sort of mistake; it is part of what the Court discussed in Miranda when it reviewed a police interrogation handbook by Fred Inbau and John Reid. Some of the techniques involve minimizing the offense (“anyone would have hit him; he was failing to show respect” or “she led you on; how were you supposed to know she wanted you to stop when she said ‘no’?”) or otherwise acting as if the police and the suspect are allies instead of the adversaries that they actually are.

I would offer a third explanation, related in some ways to the second. I hope to develop the idea in greater detail and depth in a longer scholarly treatment, but this column offers a glimpse of it in embryonic form. My explanation holds that when police leave the suspect alone in his cell, he may experience their exit as the “silent treatment,” comparable to what my mom did to me when I was a teenager.

Humans are a very social species and suffer something that registers in the brain (specifically the anterior cingulate cortex) as very much like physical pain when experiencing the social isolation and exclusion of the silent treatment. This is another way of saying that even if some person or persons are not an individual’s “friends” in any meaningful sense, the individual might still suffer from their subjecting him to the silent treatment, especially if there is no one else around to take their place as company. The individual is not necessarily feeling intimidated and is also not necessarily feeling trusting of the police. He is simply looking to them for interaction because he is lonely and afraid, and their rejection and refusal can be very painful for him.

That is the position in which a suspect might find himself. The only game in town is conversation with the police officers. If the suspect agrees to respond to police interrogation, then he will be able to talk with the police and fulfill the need that nearly all people have to be around and interact with others. If instead he invokes his right to remain silent, the police will leave his side, perhaps with faces showing contempt and disappointment and thereby inflict something like the silent treatment on the suspect. The suspect who cannot handle the prospect of the silent treatment, or the suspect who wants the “ghosting” that he is already experiencing to end, may agree to answer questions or initiate interrogation after invoking his rights, notwithstanding his knowledge that anything he says will become evidence.

The analogy to the experience of me and my mom is, to my mind, somewhat striking. She was an authority figure who had the power to take things away from me. I sometimes found her intimidating (though she was not physically scary). At the same time, I did not regard her as my friend, and I preferred to spend time with girls and boys my own age rather than with her. Yet when she gave me the silent treatment, it drove me up the wall, and I was soon ready to apologize and say that everything was my fault just to make her stop.

I now view a substantial number of my youthful apologies to her as a form of false confession. I was not actually sorry (i.e., my apology was a lie in suggesting that I felt that whatever I had done was wrong and somehow properly merited the silent treatment). Other times, I would give a more honest apology. Either way, though, I believe my words were something like the words of some people under arrest who indicate a desire to talk to the police, notwithstanding the knowledge that they have the right not to talk and that the police are not their friends.

On my theory, what suspects may not be able to resist is less the authority or seeming trustworthiness of the police than it is the fact that the police ghost him when they walk away, a seeming penalty for asserting the right to remain silent. If the silent treatment causes emotional pain, then perhaps we should rethink what happens to prisoners when they invoke their right to remain silent. If no other suspects are around, then maybe police should employ volunteers to join the suspects in their cells and talk about anything but the crime.

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