Weisselberg & Bibas Debate the State of the Right to Remain Silent

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In The Right to Remain Silent, Professors Charles Weisselberg and Stephanos Bibas debate the state of the right to remain silent after the Supreme Court’s decision in Berghuis v. Thompkins, which held that a suspect in custody must affirmatively state her intent to remain silent in order to invoke that right. Professor Weisselberg (University of California, Berkeley School of Law) recounts the interrogation of Mr. Thompkins and argues that the majority in Thompkins rejected the fundamental underpinnings of Miranda’s prophylactic rule and established a new one that fails to protect the rights of suspects. Professor Bibas (University of Pennsylvania Law School) argues that the Court’s holding reflects a proper rejection of Miranda’s “failed experiment,” which ignored the Fifth Amendment’s compulsion requirement and did not establish adequate safeguards for the innocent suspects who need them. He posits that the tougher question is how to reform the system so that it does protect those parties, and he further suggests that videotaping all interrogations would go a long way toward ensuring confessions that are free from compulsion.

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