“That’s all I got to say.”
This sounds like an assertion of the right to remain silent, doesn’t it? In a unanimous decision on Wednesday, the New Jersey Supreme Court ruled that, in fact, it is.
The defendant in New Jersey v. S.S., charged with sexually assaulting his daughter, was interrogated about the alleged offense for about an hour before he said, “No, that’s all I got to say. That’s it.” But the interrogation continued. S.S. told the police he was done speaking two more times. Nevertheless, the police officers continued their efforts to coax a confession out of him, telling him that that they knew there was “something you need to get out.”
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.
New Jersey courts have recognized that the right to silence is a fundamental protection the Constitution affords people accused of crimes. 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 that person seems to equivocate at some point, police in New Jersey must either stop the questioning or ask clarifying questions to determine whether the suspect has invoked the right to remain silent.
The trial court ruled that S.S. had invoked that right when he said, “that’s all I got to say,” and suppressed all statements made after that point in the interrogation. Although S.S.’s words were nearly identical to the language previously found by the state Supreme Court to be sufficient to invoke the right to silence, the New Jersey Appellate Division decided that S.S.’s calm tone meant he wasn’t actually invoking his right to silence. The Supreme Court thus had to address whether police and courts can use a suspect’s “tone” to eclipse the words used. The answer is no. In reversing the appellate court’s decision, the Supreme Court wrote:
“Whatever the tone of a suspect’s voice, whether it is loud or soft or unchanged or shifting, or whether the suspect is calm or jittery or submissive or antagonistic, words will make a difference and oftentimes have an objective meaning to reasonable law enforcement officers. … Elevating the importance of tone over the import of words, as the Appellate Division did here, can lead to injecting a high degree of subjectivity into the analysis.”
The ACLU of New Jersey’s Rebecca Livengood argued at the state Supreme Court that relying on tone to find that a suspect has not invoked the right to silence raises serious equal protection concerns under the New Jersey and federal constitutions.
There are widely acknowledged reasons for S.S., a Black man who was 24 years old at the time of his interrogation, to answer questions from police with a calm and composed demeanor. As many scholars have observed, and as both President Barack Obama and former Attorney General Eric Holder have noted, centuries of coercive and violent interactions with police have led Black men to adopt a calm and deferential tone when dealing with law enforcement. From a young age, Black boys are told that they need to make an effort to appear non-threatening to avoid police violence.
S.S. was using tactic of self-protection. The ACLU of New Jersey argued that for the Appellate Division to find that S.S. didn’t mean what he said because of his tone in essence leaves Black men with an impossible choice: Speak to police calmly and be found to have forfeited your constitutional rights, or speak firmly and risk being seen as an aggressor.
By rejecting the appellate court’s reliance on tone, the New Jersey Supreme Court helps protect suspects who invoke their right to silence – regardless of their race.