Reconsidering Miranda rights: Modeling strategic action during the invocation stage of a police interrogation

Abstract

This paper develops a method to identify manipulation of custodial suspects who attempt to invoke the Miranda right to legal counsel during a custodial interrogation. The method, developed from a combination of framing theory and hypergame theory, first documents the point where custodial suspects’ preferences shift and second identifies the proximate cause of that shift using excerpts from legal cases. The method applies linguistic analysis within a hypergame framework to reveal rational behavior of custodial suspects who, despite owning an initial preference to invoke, waive their right to counsel without explicit pressure from police. The paper terms this shift in preferences “manipulation” adding the concept to hypergames and to the literature on noncooperative discursive exchanges.