CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, November 22, 2010

Debate on Right to Remain Silent

Weisselberg charles ProfessorsBibas stephanos Charles Weisselberg (Berkeley) and Stephanos Bibas (Penn) engage in an online debate on the right to remain silent, discussing the Supreme Court’s decision in Berghuis v. Thompkins, at PENNumbra. From the summary:

Professor Weisselberg . . . recounts the interrogation of Mr. Thompkins and argues that the majority in Thompkins rejected the fundamental underpinnings of Miranda v. Arizona’s prophylactic rule and established a new one that fails to protect the rights of suspects.

Professor Bibas . . . argues that the Court’s holding reflects a proper rejection of Miranda’s “failed experiment,” which ignored the Fifth Amendment’s compulsion requirement and did not establish adequate safeguards for the innocent suspects who need them. He posits that the tougher question is how to reform the system so that it does protect the innocent, and he further suggests that videotaping all interrogations would go a long way toward ensuring confessions are free from compulsion.

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