THE MISSING MIRANDA WARNING: WHY WHAT YOU DON’T KNOW REALLY CAN HURT YOU

Abstract

72 Normal 0 false false false EN-US X-NONE X-NONE /* Style Definitions */ table.MsoNormalTable {mso-style-name:Table Normal; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-parent:; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:10.0pt; font-family:Calibri,sans-serif; mso-bidi-font-family:Times New Roman;} It is the absence of a no adverse inference warning in the existing Miranda warnings-that silence is not evidence of guilt-that reveals the under-inclusiveness of the original Miranda warnings. General under-inclusiveness, however, is an unavoidable aspect of any rule of presumption, and does not in the abstract justify abandoning Miranda and reverting back to the case-by-case voluntariness test it effectively replaced. Tolerance of the inherent over-breadth and under-inclusiveness of the Miranda rule has been a central theme of all post- Miranda jurisprudence. But tolerance is not synonymous with the conclusion that under-inclusiveness is unavoidable. Instead, this recognition begs the question: is under-inclusiveness genuinely inevitable and unavoidable, or the result of a defect in the method used to strike the balance Miranda sought to achieve? If the answer is the latter, then considering how Miranda can be adjusted is both logical and appropriate. This Article will address this question. Part II will review the purpose for the Miranda warning and waiver requirement. Part III will consider how the established warnings left criminal suspects vulnerable to the influence of the lay instinct equating silence in response to accusation with guilt. Part IV will discuss the proclivity of criminal suspects to waive their Miranda rights. Part V will discuss incongruity between the absence of a no adverse inference Miranda warning and the prohibition against exploiting a suspect's silence at trial. Finally, Parts VI, VII, and VIII will propose how adding this missing Miranda warning would more effectively align the original purposes of Miranda with the prophylactic actually used to protect the free exercise of the privilege against self-incrimination and, in so doing, create symmetry between the investigatory and trial phases of criminal prosecution.