Professor Janet Ainsworth is John D. Eshelman Professor of Law, at the School of Law, Seattle University, Seattle, USA.
American constitutional law provides protection for arrested persons from coercive police interrogation by giving them the right to refuse to answer questions and to the assistance of a lawyer during questioning. Once these Miranda rights are invoked by the interrogated suspect, the police must cease questioning immediately. In recent years, however, courts have adopted restrictive definitions of the kind of invocation that will count as legally efficacious. In using hyper-literal parsings of the language of suspects who attempt to assert their rights, these judges fail to utilize ordinary norms of conversational implicature and ignore the power asymmetries inherent in custodial police interrogation.
Instead, these strained interpretations result in part from an ideology of language that presumes that language is a transparent medium of communication. Because direct and unmodified locutions are consequently privileged, most attempts to claim constitutional rights are found to be defective. As a result, the constitutional protections of Miranda re practically unattainable by most arrestees.