The Dialogue Approach to Miranda Warnings and Waiver

55 Pages Posted: 27 Jun 2011 Last revised: 23 Apr 2014

See all articles by Andrew Guthrie Ferguson

Andrew Guthrie Ferguson

American University Washington College of Law; University of the District of Columbia - David A. Clarke School of Law

Date Written: June 1, 2011


The central tension in any disputed Miranda waiver case is that the evaluation of a suspect’s knowing, intelligent, and voluntary waiver is conducted months after the relevant time of the interrogation. The tension exists because current Miranda practice fails to develop an adequate record of a suspect’s knowledge and understanding at the time of the waiver. Current Miranda practice involves essentially a one-way explanation of information. The police officer conveys Miranda rights to the suspect through a formalized recitation of the warnings. Usually this is done through a reading and signing of a pre-printed Miranda waiver card. As a result, courts cannot assess the extent to which a suspect knows, understands, and willingly relinquishes constitutional rights.

This article proposes a new “dialogue approach” to resolve this tension and limit the ambiguity in disputed Miranda waivers, especially for vulnerable suspects. The dialogue approach would require suspects to confirm their understanding of the rights and the consequences of the waiver by restating the rights in their own words at the time of the interrogation. In addition, it would require a brief interchange between the police and the suspect about the purpose of rights and roles of the participants in the interrogation. It changes the Miranda waiver process from a one-way communication to a two-way dialogue. This approach would give courts and experts more accurate data to make findings about the adequacy of waiver. The result would be a real-time test of waiver that can inform the court’s ultimate legal conclusion about the knowing, intelligent, and voluntary waiver of constitutional rights.

Two recent developments in law and forensic psychology frame this proposal. First, in three recent opinions, the Supreme Court has re-conceptualized the contours of how police officers should give Miranda warnings. In Florida v. Powell, the Supreme Court held that Miranda warnings need not be universally formalized, so long as the officer reasonably communicates the rights to the suspect. In Berghuis v. Thompkins, and Montejo v. Louisiana, the Supreme Court required the suspect affirmatively to invoke the right to silence and the right to counsel. Prior to Berghuis, it would have been unnecessary for a suspect to say anything, let alone communicate (invoke) his understanding of his right to silence. Taken together, these cases allow for a more informal process that requires communication between the defendant and the interrogating officers.

Significantly, these legal decisions have developed in parallel with a scientific consensus on psychological research about interrogations and confessions. The 2010 White Paper on Police Induced Confessions: Risk Factors and Recommendations sets forth the accepted scientific understanding of the issues surrounding disputed confessions. Among other subjects, the report addresses the centrality of understanding Miranda rights prior to waiver. The studies analyzed in the White Paper validate the techniques developed to evaluate a knowing and intelligent waiver of Miranda warnings, and provide guidance for this article’s proposed solution.

With this backdrop, this article seeks to provide a new framework to address the prevailing problem of evaluating a knowing and intelligent waiver of Miranda warnings at the time of interrogation. The “dialogue approach” requires an inquiry of a vulnerable suspect’s comprehension of his or her constitutional rights at the time the Miranda warnings are read. Similar to the well established tests designed by Thomas Grisso for evaluating a knowing and intelligent waiver, the approach would require the suspect to explain in his or her own words what the rights mean. An interrogating officer would be required to ask the suspect to articulate the meaning of the words and concepts just stated and briefly explain their relevance to the current interrogation. In doing so, a record could be established about the base-line comprehension of the suspect at the relevant time.

Part one of the Article sets out the legal issues involving a knowing, intelligent, and voluntary waiver of Miranda rights. Part two sets out the current scientific understanding of Miranda comprehension tests as well as their applicability and admissibility in court. Part three addresses the specific problem of waiver with vulnerable populations, and proposes a new framework through a dialogue approach. This section also examines a representative case that show cases a dialogue friendly interrogation. Part four addresses some of the constitutional concerns of this approach, as well as the practical difficulties in implementing any new Miranda requirement. The last section offers some suggestions to courts and law enforcement professionals in addressing the fundamental components to any valid waiver.

Keywords: Miranda, miranda waiver, confession, vulnerable suspects, Fifth Amendment, Berghuis

Suggested Citation

Ferguson, Andrew Guthrie, The Dialogue Approach to Miranda Warnings and Waiver (June 1, 2011). 49 Am. Crim. L. Rev. 1437 (2012), Available at SSRN: or

Andrew Guthrie Ferguson (Contact Author)

American University Washington College of Law ( email )

4300 Nebraska Avenue, NW
Washington, DC 20016
United States

University of the District of Columbia - David A. Clarke School of Law ( email )

4200 Connecticut Ave. NW
Washington, DC 20008
United States

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