The right to remain silent: Realities and illusions

Most Western democracies recognize the right to remain silent as operationalized through the warning-and-waiver requirements introduced by the US Supreme Court in Miranda v. Arizona (1966). This requirement stands as a symbol of fairness in criminal justice. Yet beginning with the empirical fact that very few suspects invoke their rights, research casts doubt as to what protection, if any, it affords. This chapter reviews a number of problems-namely, that many people, especially juveniles and adults under stress, have limited comprehension of these rights; that police use tactics designed to elicit waivers, often casting doubt as to voluntariness; that innocent people routinely waive their rights because they feel no need for protection; that these rights are triggered only when a suspect is in “custody,” leaving many individuals to be questioned without warning who do not feel free to leave; and that many suspects fear that their silence would be used against them, an adverse inference they are specifically warned about in the UK. A number of reforms are proposed to protect individual suspects by regulating the process of interrogation and requiring that it be recorded in its entirety.