Separate But Equal: Miranda's Right to Silence and Counsel

53 Pages Posted: 16 Sep 2014

See all articles by Steven P. Grossman

Steven P. Grossman

University of Baltimore - School of Law

Date Written: Fall 2012


Three decades ago, the Supreme Court created a dubious distinction between the rights accorded to suspects in custody who invoke their right to silence and who invoke their right to counsel. This distinction significantly disadvantages those who do not have the good sense or good fortune to specify they want an attorney when they invoke their right to remain silent. This article argues that this distinction was flawed at its genesis and that it has led to judicial decisions that are inconsistent, make little sense, and permit police behavior that substantially diminishes the right to silence as described in Miranda v. Arizona. The article does so by demonstrating that the distinction is unsupportable either theoretically or pragmatically. It then shows that two recent holdings of the Court have paved the way for abolishing the distinction and developing an approach that both reflects the reality of custodial interrogation and is consistent with the principles behind the Fifth Amendment and the holding in Miranda.

Keywords: Miranda v. Arizona, right to remain silent, right to counsel, police behavior, custodial interrogation, Fifth Amendment, constitutional law

JEL Classification: K14, K19, K39, K41, K49

Suggested Citation

Grossman, Steven P., Separate But Equal: Miranda's Right to Silence and Counsel (Fall 2012). Marquette Law Review, Vol. 96, No. 1, Fall 2012, pp. 151-203., Available at SSRN: or

Steven P. Grossman (Contact Author)

University of Baltimore - School of Law ( email )

1420 N. Charles Street
Baltimore, MD 21218
United States

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