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Sturm College of Law


Miranda, Fifth Amendment, Right to remain silent, Waiver of rights, Criminal procedure, Criminal law


When the Court in Miranda v. Arizona applied the Fifth Amendment “right to remain silent” to the stationhouse, it also created an inherent contradiction that has bedeviled Miranda cases since. That is, the Court in Miranda said that a suspect can waive her right to remain silent but also that she must invoke it. Numerous courts have repeated this incantation, including most recently last summer in Berghuis v. Thompkins. But how can both be true about the same right? Either the suspect has the right and can waive it or does not yet enjoy it and must therefore invoke it.

This Article argues that the Miranda “right to remain silent” actually contains two sub-rights: the right not to speak and the right to cut off police questioning. The Court has never distinguished these as two separate rights—instead usually using the term “right to remain silent” for both—and has thus created confusion over what can be waived and what must be invoked. But when we separate the two sub-rights, we see that a suspect can waive the right not to speak but must invoke the right to cut off questioning—a premise implicitly confirmed by both the majority and the dissent in Berghuis v. Thompkins.

By separating the two sub-rights, we also discover an important tool for analyzing new problems that arise under Miranda’s “right to remain silent.” For example, why must suspects invoke—unambiguously—the right to cut off questioning when police almost never warn them they have such a right? As for waiver of the right not to speak, Miranda required a showing of waiver but also precluded waiver by insisting that a suspect who speaks may stop and “remain silent” at any time. This Article suggests that the entire concept of “waiver” confuses rather than clarifies any right we think a suspect should enjoy.

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Originally published as Laurent Sacharoff, Miranda’s Hidden Right, 63 Ala. L. Rev. 535 (2012).