Sacharoff on Miranda’s Hidden Right

Laurent Sacharoff (University of Arkansas School of Law) has postedMiranda’s Hidden Right on SSRN. Here is the abstract:

Miranda v. Arizona said that a suspect can waive her right to remain silent but also that she must invoke it. How can both be true about the same right? 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 rights, we see that Miranda implicitly held 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.