Rethinking Miranda: The Post-Arrest Right to Silence

28 Pages Posted: 20 Mar 2011  

Stephen Rushin

Loyola University Chicago School of Law

Abstract

Some scholars have recently observed that Miranda protections are under attack. At its core, Miranda requires law enforcement to inform a criminal suspect of her constitutional rights before custodial interrogation in order to protect her privilege against self-incrimination. But today, Miranda warnings inform individuals of only a small subset of their actual Fifth Amendment rights, partially due to ambiguity in the current doctrine. Perhaps no area of Fifth Amendment doctrine is more ambiguous than a suspect’s right to silence during post-arrest interrogation.

This Comment explores the selective invocation of the right to silence during custodial interrogations. I define selective invocation as the ability of a suspect to exercise her right to silence on a question-to-question basis after an earlier waiver of Miranda rights. State and federal courts have split on the issue of whether a criminal suspect may selectively invoke the right to silence in this way. I argue, however, that a rule permitting criminal suspects to selectively invoke the right to silence accords with constitutional doctrine and public policy considerations. Further, I argue that suspects ought to bear the burden to explicitly invoke the right to silence during interrogation. Lastly, to avoid due process concerns arising from such burdens on suspects, I argue Miranda warnings should be expanded to bridge the current information asymmetry between law enforcement and citizenry. In total, I contend that these policy proposals would benefit law enforcement and comprehensively protect a criminal suspect’s Fifth Amendment rights.

Keywords: Selective Invocation, Self-Incrimination, Miranda, Interrogation, Fifth Amendment

Suggested Citation

Rushin, Stephen, Rethinking Miranda: The Post-Arrest Right to Silence. California Law Review, Vol. 99, p. 151, 2011. Available at SSRN: https://ssrn.com/abstract=1788764

Stephen Rushin (Contact Author)

Loyola University Chicago School of Law ( email )

25 E. Pearson
Chicago, IL 60611
United States

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