Touro Law Review


The right to remain silent has long been recognized by the Supreme Court as requiring a high degree of protection. Since Miranda v. Arizona was decided in 1966, procedural safeguards have been put in place to inform individuals of this right upon arrest. Yet, a gray area exists when it comes to the use of an individual's silence post-arrest. It may surprise some that a point in time exists when an individual has not yet been read their Miranda rights post-arrest. Several circuit courts have taken the position that any silence that follows arrest but precedes the reading of Miranda rights can be used against an individual as evidence of their guilt. The unresolved circuit split on the issue of post-arrest pre-Miranda silence continues to pose a threat to one of the most fundamental rights afforded to individuals. Resolution is not out of the Court's reach. By incorporating existing precedent and establishing a bright-line rule which would require formal arrest to immediately trigger Miranda's procedural safeguards, the Court can ensure that the constitutional guarantees which are so deeply rooted in our justice system may continue to prosper.