Why Paul Grice Probably Couldn't Exercise His Miranda Rights

Saturday, February 18, 2017: 1:00 PM-2:30 PM
Room 302 (Hynes Convention Center)
Janet Ainsworth, Seattle University, Seattle, WA
Why Paul Grice Probably Couldn’t have Invoked his Miranda Rights (and Neither Could You)

Over a half century ago, in its landmark Miranda v. Arizona case, the Supreme Court recognized that incommunicado police questioning was so inherently coercive that it was doubtful that confessions under these circumstances were truly voluntary and hence reliable. For that reason, Mirandagives individuals the right to have a lawyer present to assist them during questioning. If the person being interrogated asks for a lawyer, police questioning must stop and cannot resume in the absence of counsel. This ability to put an end to unassisted questioning helps to dispel the coercive atmosphere that undermines voluntariness.

After Miranda, the Court had to decide, how should we determine when a suspect has in fact invoked the right to counsel. The Supreme Court answered that question by holding that only invocations that were clear, unequivocal, and unambiguous would be legally operative. In doing so, the Court misunderstood Gricean principles of conversational implicature by holding that only direct and unmodified requests for counsel are “true” requests. In addition, the Court failed to consider that persons in social and situational positions of powerlessness might disproportionately use indirect and hedged modes of performative speech in attempting to exercise their rights. As a result of this fundamental misconception of the nature of the speech act of rights invocation in context, the Court created a legal framework that renders most attempts to ask for counsel a legal nullity. Now, the rule in Miranda, designed to ensure that confessions are voluntary, creates a two–tiered set of constitutional protections, with only those who invoke their rights in a judicially-approved way getting legal protection, and those fail this linguistic shibboleth getting no legal protection at all.