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Miranda With an English Accent

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The new issue of Engage, the journal of the Federal Society's Practice Groups, is out, just in time for the National Lawyers Convention. The table of contents and a link to a PDF of the full issue are here.

Among the articles is one by CJLF's Lauren Altdoerffer comparing the U.K.'s statutorily prescribed interrogation warnings with the U.S.'s judicially crafted Miranda rule. A key difference in the U.K. is that the suspect is advised that his silence can be used at trial if he raises something he would reasonably have been expected to say upon arrest. For example, an arrestee with a real alibi would be expected to say so immediately. A criminal who wants to concoct a false alibi needs to line up people willing to lie for him first. There is a logically valid inference from silence in that situation, and the trier of fact should be allowed to consider it.

Contrary to popular myth and the prescribed Miranda warnings, the Fifth Amendment does not contain a right to remain silent. It says, "nor shall any person ... be compelled in any criminal case to be a witness against himself...." That is not the same thing.

Josh Blackman is liveblogging the Convention here.

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