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The Judges' Book

Abstract

A basic but underappreciated problem pervades Fifth Amendment doctrine (including Miranda v. Arizona): people may know, in a broad sense, that they have the right to remain silent and to counsel, yet a deep disconnect exists between what ordinary people think is required to invoke those rights and what courts demand. Settled Supreme Court case law requires that the right to counsel and silence must be invoked clearly and unambiguously. In practice, those requirements have produced a body of law in which ordinary language and conduct often does not suffice to invoke either right, simply because the suspect did not use, as Justice Breyer lamented in a dissent, “legally magic” words.

This Chapter summarizes a survey of 1,718 members of the U.S. public regarding what ordinary people think it takes to assert the right to counsel and the right to silence. The study compares their perceptions to prevailing legal standards governing invocation. Using fact patterns from canonical Fifth Amendment cases, the study examines survey respondents’ beliefs about what, precisely, a person must say or do to invoke their rights.

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