Her II directed that, on remand, “the State should be given the opportunity to establish, by a preponderance of the evidence, that Her forfeited his confrontation claim by killing Vang with the intent to prevent her from testifying against him.”

In other words, the trial judge will have to make a finding that the defendant probably is or is not guilty — and then continue presiding over the trial.

It is truly an absurdity to say that Mr. Her killed Ms. Vang to prevent her from testifying that he killed her.

But it is even more absurd to ask our trial judges to say, “Mr. Defendant, you are presumed innocent, but because I think you’re probably guilty, I will let the jury hear otherwise inadmissible evidence that will steer them in what I think is the right direction.”

“Interrogation provides the suspect with additional information that can put his or her decision to waive, or not to invoke, into perspective. As questioning commences and then continues, the suspect has the opportunity to consider the choices he or she faces and to make a more informed decision, either to insist on silence or to cooperate. When the suspect knows that Miranda rights can be invoked at any time, he or she has the opportunity to reassess his or her immediate and long-term interests. Cooperation with the police may result in more favorable treatment for the suspect; the apprehension of accomplices; the prevention of continuing injury and fear; beginning steps towards relief or solace for the victims; and the beginning of the suspect’s own return to the law and the social order it seeks to protect.”

Note the wording: the suspect’s “choice” is to “insist on silence or to cooperate.” The Court strongly suggests that invocation of the right to silence is disfavored. Moreover, the notion that a suspect has _anything_ to gain by “cooperating” with an interrogation initiated by police is absurd. I’m sure that sitting in custody provides ample opportunity to consider short- and long-term interests. And an interrogation is by no means the only opportunity for confession. (Of course, the unspoken presumption of that entire paragraph above is that the person under interrogation is guilty.)

An interrogation is quite simply a game in which the police try to manipulate the suspect into confessing. Naturally, those who lose this game are the weakest of mind and of wallet (since no attorney would ever advise a client to “cooperate”). To further erode the protections for people who are already losing this game is extremely misguided.

Moreover, even the advisory given to Mr. Thompkins is arguably insufficient to apprise the average person of the right to terminate the interrogation. The advisory stated, “You have the right to decide at any time before or during questioning to use your right to remain silent and you right to talk with a lawyer while you are being questioned.” This sentence is at best confusing, and at worst, misleading. A reasonable interpretation would be to assume that the right to silence meant only that the suspect could decline to answer any question, but not that the suspect could end the interrogation entirely just by saying “I don’t want to talk any more.”

The obligation of the police should extend beyond mere formulaic recitations that are difficult for laypeople to understand. And we must acknowledge the reality most people will not admit it when they do not understand something.

How about, “We’d like to ask you some questions. This is for the purpose of a criminal investigation, and anything you say can be used against you. If you’d like a lawyer here with you during questioning, just let us know and we will stop until your lawyer arrives. You can also talk with your lawyer before questioning. If you can’t afford a lawyer, you may apply for a court-appointed lawyer at public expense, meaning that you won’t have to pay. You don’t have to answer any questions if you don’t want to. If you don’t want to talk at all, simply say so, and we will be required to end the interrogation.”