New research uncovers ‘Miranda penalty’: Exercising the right to remain silent increases suspicion

A new study published in Law and Human Behavior shows that people tend to perceive criminal suspects who exercise their right to remain silent or request a lawyer as more likely to be guilty compared to those who waive their rights and speak to the police. This phenomenon, dubbed the “Miranda penalty,” suggests that invoking the constitutional protection against self-incrimination may, paradoxically, make suspects appear more suspicious. These findings raise concerns about potential biases in criminal investigations.

The Miranda warning, established by the landmark Supreme Court case Miranda v. Arizona (1966), is intended to protect individuals from self-incrimination during police interrogations. Before questioning, law enforcement officers must inform suspects of their right to remain silent and their right to an attorney. Despite this safeguard, an overwhelming majority of suspects, both innocent and guilty, choose to waive their rights and speak to the police. This has long puzzled researchers and legal experts alike.

Prior research has suggested two dominant explanations for this phenomenon. First, many people do not fully understand their Miranda rights because of the complex legal language often used in the warnings, or because of individual factors like youth, intellectual disability, or the stress of the interrogation itself. Second, innocent suspects often believe that their innocence will be obvious to investigators, leading them to believe that they don’t need the protection of their rights. The current study, however, proposed a third explanation: suspects may waive their rights because they fear that invoking them will make them appear guilty.

“We were curious about why so many innocent people choose to waive their Miranda rights and speak to the police during a criminal investigation, even though it’s often not in their best interest,” explained study author Megan Lawrence, a PhD student in law and psychology at Arizona State University.

“One explanation is that people are worried that refusing to talk to the police will make them look guilty. While this seems intuitive, we were surprised to find that there was no published research that actually tested whether people make assumptions about a suspect’s guilt when they refuse to speak to the police in a criminal investigation. So, we designed two studies that would get at this question.”

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To test this hypothesis, the researchers conducted two experiments. In the first experiment, 256 undergraduate psychology students participated. In the second, the researchers recruited 119 undergraduate and graduate students pursuing degrees in law enforcement or related fields, such as criminology and criminal justice. This second sample was recruited in order to better understand if those who work in law enforcement or who are interested in careers in this area are susceptible to this same bias.

In both experiments, participants were asked to imagine themselves as police officers investigating a series of crimes. They read six short case descriptions, each detailing a different crime and presenting ambiguous evidence against a suspect. Three of these descriptions, the experimental cases, included information about the suspect’s decision during police questioning. In one condition, the suspect waived their Miranda rights, agreed to talk to the police, and denied involvement in the crime. In another condition, the suspect explicitly invoked their right to remain silent. In a third condition, the suspect simply sat silently and did not answer any questions.

Additionally, in the first experiment, half of the participants in the “invoke” condition read that the suspect invoked only their right to silence, while the other half read that the suspect invoked both their right to silence and their right to an attorney. After reading each case description, participants rated the likelihood that the suspect was guilty on a scale from 0% (definitely innocent) to 100% (definitely guilty). They also indicated whether they would judge the suspect as “innocent” or “guilty” if they had to make an immediate decision. Participants then rated the suspect on various characteristics, such as trustworthiness, honesty, intelligence, cooperativeness, and suspiciousness. Finally, they were asked to imagine they had 10 hours to allocate to investigating the suspect versus other potential leads, and to indicate how they would distribute those hours.

The results across both experiments provided strong evidence for a “Miranda penalty.” Participants consistently rated suspects who invoked their right to remain silent or who simply sat in silence as more likely to be guilty compared to those who waived their rights and spoke to the police. This effect was observed in both the continuous guilt ratings and the dichotomous “innocent” or “guilty” judgments.

“Our study highlights a catch-22 that suspects face during interrogations: speaking to police carries the risk of saying something incriminating, but we found that refusing to speak can also make someone look guilty,” Lawrence told PsyPost.

For instance, in the first experiment, participants judged 58.2% of suspects who invoked their Miranda rights and 62.1% of those who remained silent as guilty, a significantly higher rate than the 47.3% guilty judgment for suspects who waived their rights and spoke to police. Interestingly, the difference in guilt perceptions between suspects who explicitly invoked their rights and those who simply remained silent was not statistically significant.

“In the legal world, there’s a key difference between simply sitting in silence and explicitly stating the intention to remain silent,” Lawrence noted. “In order to end an interrogation, a suspect must clearly say they want to invoke their right to silence. If someone just sits quietly, the police are still allowed to continue questioning them.”

“Given this difference in how the law treats these two behaviors, we were curious to see if people perceive suspects in these two situations differently. We found that suspects who sit in silence and suspects who expressly invoke their right to remain silent are both viewed as more guilty than suspects who waive their rights and speak to the police.”

Participants also judged suspects who remained silent or invoked their rights more negatively on other characteristics, such as trustworthiness and honesty, compared to those who waived their rights. Furthermore, participants indicated they would allocate more investigative hours to suspects who invoked their rights or remained silent. This pattern was consistent across both the undergraduate sample and the sample of students in law enforcement-related programs, suggesting that the bias may be present even among those with more knowledge of the legal system.

As with all research, the study has some limitations that should be considered. First, the researchers used hypothetical scenarios and short case descriptions, which may not fully capture the complexities of real-world investigations. Second, although the second experiment included students in law enforcement-related programs, a sample of actual police officers would have been ideal.

“One key limitation is that participants had relatively little information about each criminal investigation before giving their gut impressions about the suspect’s guilt,” Lawrence said. “In real-world settings, police often have access to much more information. However, we think our findings are still likely to extend to real-world contexts, as police are often trained to make rapid judgments based on suspects’ verbal and nonverbal behaviors. Still, a valuable next step would be to replicate these findings using more detailed case materials.”

The findings of this study have significant implications for the criminal justice system. They suggest that the very act of exercising one’s constitutional rights can create suspicion and potentially lead to more intense scrutiny from law enforcement. This could exacerbate existing biases in investigations and increase the risk of wrongful convictions, particularly for innocent suspects who may be pressured to waive their rights to avoid appearing guilty.

“There are a lot of interesting future directions for this line of work,” Lawrence explained. “One we’ve discussed is based on the idea that people likely have different assumptions about how often innocent and guilty people invoke their Miranda rights. I would love to explore how these general assumptions influence people’s evaluation of a specific suspect based on their decision to speak or not speak to the police.”

The study, “The Miranda Penalty: Inferring Guilt From Suspects’ Silence,” was authored by Megan L. Lawrence, Emma R. Saiter, Rose E. Eerdmans, and Laura Smalarz.