Murder by Miranda

Russell L. Christopher - The University of Tulsa College of Law
Vol. 55
February 2022
Page 1897

Which prevails when substantive criminal law obligates us to speak and the Constitution affords us the right to remain silent? Though not widely known, the U.S. Supreme Court has firmly established the unconstitutionality of omission liability that criminalizes silence protected by the Fifth Amendment privilege against compelled self-incrimination. But this issue has arisen only for minor crimes — failing to report or register. Courts and commentators have overlooked that this conflict between a criminal law duty to speak and the constitutional right to remain silent protected by the Fifth Amendment (as well as Miranda and the First Amendment) also arises for serious criminal offenses including murder. It occurs anytime someone has a duty to save imperiled life but is in custody (after having been Mirandized) and intentionally fails to disclose the peril because it would be self-incriminating. Should the constitutional rights to remain silent still prevail even when murder could be prevented and innocent life saved by prioritizing a criminal law duty to speak? Perhaps public policy demands the creation of an exception to the constitutional rights to remain silent when innocent life is at stake. By recognizing such an exception, however, the Miranda instruction itself — “You have the right to remain silent” — would constitute entrapment by the police and equally supply a defense. Precluding an entrapment defense requires revising Miranda. But then what becomes of Miranda’s venerable and celebrated instruction — perhaps the best-known language of the Supreme Court throughout the world: You have the right to remain silent, maybe? The Article concludes that there is no entirely satisfactory way to resolve the conflict. Do the rights trump lives, or do lives trump the rights?

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