Rushin on Post-Arrest Silence

Stephen Rushin has posted Rethinking Miranda: The Post-Arrest Right to Silence (California Law Review, Vol. 99, p. 151, 2011) on SSRN. Here is the abstract:

Some scholars have recently observed that Miranda protections are under attack. At its core, Miranda requires law enforcement to inform a criminal suspect of her constitutional rights before custodial interrogation in order to protect her privilege against self-incrimination. But today, Miranda warnings inform individuals of only a small subset of their actual Fifth Amendment rights, partially due to ambiguity in the current doctrine. Perhaps no area of Fifth Amendment doctrine is more ambiguous than a suspect’s right to silence during post-arrest interrogation.

This Comment explores the selective invocation of the right to silence during custodial interrogations. I define selective invocation as the ability of a suspect to exercise her right to silence on a question-to-question basis after an earlier waiver of Miranda rights. State and federal courts have split on the issue of whether a criminal suspect may selectively invoke the right to silence in this way. I argue, however, that a rule permitting criminal suspects to selectively invoke the right to silence accords with constitutional doctrine and public policy considerations. Further, I argue that suspects ought to bear the burden to explicitly invoke the right to silence during interrogation. Lastly, to avoid due process concerns arising from such burdens on suspects, I argue Miranda warnings should be expanded to bridge the current information asymmetry between law enforcement and citizenry. In total, I contend that these policy proposals would benefit law enforcement and comprehensively protect a criminal suspect’s Fifth Amendment rights.