Miranda's Hidden Right

55 Pages Posted: 19 Nov 2010 Last revised: 9 Jun 2021

See all articles by Laurent Sacharoff

Laurent Sacharoff

University of Denver Sturm College of Law

Date Written: February 21, 2011


When the Court in Miranda v. Arizona applied the Fifth Amendment
“right to remain silent” to the stationhouse, it also created an inherent
contradiction that has bedeviled Miranda cases since. That is, the Court in
Miranda said that a suspect can waive her right to remain silent but also
that she must invoke it. Numerous courts have repeated this incantation,
including most recently last summer in Berghuis v. Thompkins. But how
can both be true about the same right? Either the suspect has the right and
can waive it or does not yet enjoy it and must therefore invoke it.
This Article argues that the Miranda “right to remain silent” actually
contains two sub-rights: the right not to speak and the right to cut off
police questioning. The Court has never distinguished these as two
separate rights—instead usually using the term “right to remain silent” for
both—and has thus created confusion over what can be waived and what
must be invoked. But when we separate the two sub-rights, we see that a
suspect can waive the right not to speak but must invoke the right to cut off
questioning—a premise implicitly confirmed by both the majority and the
dissent in Berghuis v. Thompkins.
By separating the two sub-rights, we also discover an important tool
for analyzing new problems that arise under Miranda’s “right to remain
silent.” For example, why must suspects invoke—unambiguously—the right
to cut off questioning when police almost never warn them they have such a
right? As for waiver of the right not to speak, Miranda required a showing
of waiver but also precluded waiver by insisting that a suspect who speaks
may stop and “remain silent” at any time. This Article suggests that the
entire concept of “waiver” confuses rather than clarifies any right we think
a suspect should enjoy.

Suggested Citation

Sacharoff, Laurent, Miranda's Hidden Right (February 21, 2011). 63 Ala. L. Rev. 535 (2012), Available at SSRN: https://ssrn.com/abstract=1711410

Laurent Sacharoff (Contact Author)

University of Denver Sturm College of Law ( email )

260 Waterman Hall
Fayetteville, AR 72701
United States

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