New Jersey Argued That a Calm Manner Could Be Used Against You in Police Interrogations. Luckily, It Lost.

“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.

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berta peterson-smitg

thank god for the aclu. blacks are not the only citizens faced with this dellima

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Anonymous

And this BS has what to do with this article? You clowns are a joke.

Chompachangas

Hey Aclu.org mods and admins: we need to be able to flag comments on here such as this as spam.

Anonymous

This is a phishing attempt. Don't click on it.

Anonymous

Kkkops will never ee a black man as innocent. Not even a 1 day old.

Anonymous

So edgy

Anonymous07306

It's about time the NJ chapter did something for the people, instead of taking donations and not even trying to help people with any legal situation they find themselves in in this fascist state.

Alton Bradley

I am a middle aged white southern man who has had his fair share of uncomfortable encounters with some of these young white buzz head cops who want nothing more than to antagonize people into violence, aggression or self incrimination. I am so glad the court ruled that it is indeed a constitutional right (which should be obvious) to remain silent. It enrages these jackbooted thugs when I remain calm while they scream at me. I try to avoid the police wherever possible, because I am a liberal socialist activist. I look like the leader of the local Republican Party because I am well dressed and we'll spoken. I get a kick out of seeing these neo Nazis thugs go sideways when I challenge them on constitutional issues. They usually reveal themselves to be what they really are: uneducated barely literate redneck bullies who don't take time to learn the truth, and operate out of a position of fear, which is what bullies do. They can all kiss my arse.

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