The Sound of Silence: Miranda Waivers, Selective Literalism and Social Context
in Lawrence Solan, Janet Ainsworth, & Roger Shuy, eds., Speaking of Language and Law (Oxford Univ. Press 2014).
6 Pages Posted: 20 Jun 2014 Last revised: 20 Aug 2015
Date Written: June 1, 2014
In this essay, the author examines the scholarship of Peter Tiersma and Lawrence Solan in the context of the United States Supreme Court case, Berghuis v. Thompkins, 560 U.S. 370 (2010), which held that a waiver of a suspect’s Miranda right to counsel can be implied through silence. Did the Court reach the correct ruling in Thompkins? As an empirical matter, did Thompkins invoke his right to silence by remaining silent? As a normative matter, should the Court have allowed him to invoke his right to silence by remaining silent? The author asserts that the work of Tiersma and Solan on the interactions (spoken and unspoken) between police and suspects helps to frame and understand these questions. Tiersma and Solan have demonstrated that courts tend to selectively require literal speech when interpreting the utterances of criminal suspects seeking to assert their rights, but not when a suspect’s utterances arguably forego asserting their rights. Likewise, courts interpret indirect language by police in asking for suspect consent to search as though it were a direct request. The courts’ selective literalism fails to take pragmatic information and social context into account when interpreting the speech acts of custodial suspects. Thus, defendants are held to higher linguistic standards than the police, and these selective linguistic modes of interpretation always favor the state over the accused. The author joins Tiersma in arguing that courts should look to the communicative intent of suspects when interpreting whether through words or actions, they wish to invoke their right to silence during police interrogation rather than relying on selective, court-created fictions about what constitutes a freely and voluntarily chosen Miranda waiver.
Keywords: Miranda rights, criminal procedure, Berghuis v. Thompkins, police interrogation, confession, Miranda waiver
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By Yale Kamisar