The Sounds of Silence: Reconsidering the Invocation of the Right to Remain Silent Under Miranda

Abstract

In Miranda v. Arizona, the Supreme Court required that prior to any custodial interrogation a suspect must be informed that he has the right to remain silent and the right to an attorney and that no interrogation can occur until the suspect waives these rights. Although these protections seem on first blush to effectively empower a suspect to choose whether to speak to the police, many have deemed Miranda a spectacular failure. There are numerous critics of the Miranda decision and its progeny on a variety of levels, but what has received too little attention is whether the most basic protection of the Miranda decision operates effectively. That is, how can a suspect effectively assert the right to remain silent and do the police appropriately respect such an assertion? This paper attempts to answer that question by considering what constitutes an assertion of the right to remain silent. Although Miranda suggested that if an individual indicates in any manner at any time that he wishes to remain silent, the interrogation must cease, subsequent cases have required a more explicit invocation of the desire not to speak. Relying on Davis v. United States, a Supreme Court decision addressing the invocation of the right to counsel, the bulk of lower courts require that a suspect unambiguously invoke the right to remain silent. Such a transposition of the requirements for asserting the right to counsel with the right to remain silent is wrong as a matter of law, unwise as a matter of policy and threatens to eviscerate the core protection of Miranda. This article argues that the requirement that the right to remain silent be unambiguously asserted is inconsistent with the guarantees of Miranda. The passage of time since Miranda and Davis has revealed one indisputable fact: rarely do suspects invoke their rights. Only 20 per cent initially assert their rights rather than waive them and almost no suspects assert their rights after a valid waiver. While some suspects undoubtedly want to talk to the police, this paper argues that these statistics have a more nefarious explanation: courts have made is extremely difficult for suspects who want to assert their rights to do so. By cataloguing the state and federal cases since Davis that has addressed the right to remain silent, I attempt to demonstrate how the lower courts have gone to extraordinary lengths to classify even seemingly clear invocations as ambiguous statements which can be ignored by the police. As a result, Miranda's promise that suspects freely determine whether and when they wish to submit to custodial interrogation is an empty one.