You Have the Right to Remain Silent

But you’ll probably talk anyway.

Posted Jan 24, 2017

A detective wants to talk with you about the murder of Mr. Boddy.

“We found boot prints in the conservatory that match the tread on your shoes,” he says.

“Yes,” you reply, “I was walking in the garden and must have dragged in some mud.”

“And we found your fingerprints on the lead pipe,” he adds.

“Yes,” you explain, “I was inspecting the equipment for the new watering system.”

“And Colonel Mustard says he overheard you quarreling with Mr. Boddy just before the incident,” he tells you.

“Yes,” you admit. “He was upset about my relationship with Miss Scarlett.”

The inspector grimaces.

“But I didn’t kill him!” you insist. And you’re telling the truth. Mr. Boddy was very much alive when you left the Conservatory.

The detective isn’t buying it, though, and he reads you your Miranda rights. Down at the station, you cooperate with the interrogation. Surely there’s just been a misunderstanding, and if you only explained yourself, they would clearly see your innocence.

But many hours later, you’re exhausted and hungry. You have a pounding headache and you can’t even think straight anymore. When the inspector suggests that you hit Mr. Boddy with the lead pipe in a burst of anger, you wonder if that wasn’t the way it happened. At any rate, you just want the interrogation to end. So you sign the confession.

The U.S. Supreme Court handed down the Miranda ruling in 1966 as a way to protect the innocent from being coerced into making false confessions. However, as psychologist Laura Smalarz and her colleagues point it, the ruling isn’t having its intended effect. Even since Miranda, many innocent people have been wrongfully convicted on the basis of false confessions that they made after waiving their right to remain silent. Of the wrongful convictions that have been overturned based on DNA evidence, 29% involved false confessions.

Although its intentions are good, the Miranda ruling is based on a number of false assumptions about human psychology. Among these is the expectation that people can reasonably decide when to waive their rights. This is especially problematic among the youth, the intellectually impaired, and the mentally ill. However, even intelligent, rational adults are likely to make poor decisions under the stress of being arrested and interrogated by the police.

And if you’re wondering why anyone would confess to a crime they didn’t commit, you don’t have to look very far to find everyday examples. After a long argument with his wife, the husband concedes that maybe he was flirting with the waitress after all, even though he only thought he was just being friendly at the time. If you look back on your own life, you can surely think of times when you relented to somebody else’s version of events just to make peace. The duress of a marital spat pales in comparison to the pressure of an extended police interrogation.

Another problem with Miranda is that people often misunderstand the consequences of refusing to waive their rights. Surveys indicate that people fear they’ll be perceived as uncooperative, or that their not talking will be held against them later. However, as Smalarz points out, you cannot be prosecuted or otherwise punished for invoking your right to remain silent.

You might think that innocent suspects would exercise their rights, remaining silent until their attorney is present. But this isn’t what Smalarz and her colleagues have found in simulation experiments involving a mock crime and police interrogation. Granted, this is an artificial situation that may not accurately reflect real life. Still, the researchers found that 81% of the “innocent” research participants waived their Miranda rights, compared to only 36% of “guilty” ones.

Innocent suspects tend to believe they have nothing to lose by talking, since they haven't done anything wrong. They want to believe that by talking they can demonstrate their innocence. However, by allowing the interrogation to proceed, they open themselves up to coercion and to the likelihood of making a false confession.

Most police officers are decent human beings who are just trying to do their jobs to the best of their ability. But they’re subject to the same cognitive biases we all suffer from. Take for example confirmation bias, which is the tendency to seek information that confirms your prior beliefs while ignoring evidence to the contrary. The police have arrested you because they think you’re guilty, so nothing you say is likely to change their opinion.

Smalarz and her colleagues make several suggestions for improvement. One is to shift the burden of proof in the courtroom. That is, rather than requiring defendants to prove that their rights were waived involuntarily, the prosecution has to prove that a confession was obtained without duress before it is admissible as evidence.

Another suggestion is to require that all police interrogations be videotaped from start to finish. That way, judges and juries can determine for themselves whether the confession was coerced or not. Furthermore, studies show that police officers are less likely to use coercive tactics when they know they’re being recorded.

Our criminal justice system works on the premise of “innocent until proven guilty.” However, police interrogations, by their very nature, proceed on the presumption of guilt. Any confession extracted under the duress of interrogation is unlikely to be a reliable account of events, even if the suspect is guilty. And for that reason alone, judges should think carefully before admitting confessions as evidence in trials. 


Smalarz, L., Scherr, K. C., & Kassin, S. M. (2016). Miranda at 50: A psychological analysis. Current Directions in Psychological Science, 25, 455-460.

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