Turning Miranda Right Side up: Post-Waiver Invocations and the Need to Update the Miranda Warnings‪.‬

INTRODUCTION In Miranda v. Arizona, (1) the Supreme Court sought to protect the constitutional privilege against compulsory self-incrimination. (2) It did so by, among other things, requiring that interrogators inform suspects of the right to remain silent before conducting a custodial interrogation. (3) In the forty-five years since Miranda was decided, the fight to remain silent has been frequently litigated, creating a body of law that is difficult to understand, often unfair to criminal suspects seeking to invoke the right, (4) and largely contrary to the Miranda Court's intention. (5) The Supreme Court's recent decision in Berghuis v. Thompkins (6) compounds these concerns in two ways. First, although the Court placed a new and demanding requirement on invocations of the right to remain silent, (7) the Court did not require officers to inform suspects of that requirement. Second, despite Miranda's "implicit promise," (8) suspects' post-waiver silence in custodial interrogations can be used against them at trial. (9) In Berghuis, the Court held that such silence is not an invocation of the right because it is not "unambiguous." (10) To remedy the current warnings' failures, (11) the Court could reexamine this stance on silence, reconsider the use of clarifying questions, or provide a more robust right to counsel in custodial interrogations. More directly, it could update the Miranda warnings so that they accurately reflect its precedents and inform suspects of the requirements placed on invocations. What is clear is that something must change to ensure that the "transcendent right" (12) Miranda sought to protect is actually--and adequately--protected.