I guess I would prefer a situation like that to one where suspects are required to explicitly invoke their rights but aren’t told that they have to do so.

Still, both scenarios fall short of ideal, for me, because they suggest that the default state is that suspects want to talk to police, and suspects have to do something to change that presumption, rather than the default being that suspects are assumed to want to be silent and to talk to a lawyer. In other words, the burden is on the right-holder to “exercise” the right, rather than on the police to respect the right. There may be some scenarios where that’s the way rights should work, but the criminal justice system isn’t one of them. We don’t tell criminal defendants that they have the right to attorney if they make VERY clear that they want one. We just tell them they have the right to an attorney, and we make sure they get one (usually… see Slate today for a really infuriating tale of justice subverted).

I think it should absolutely be made clear that suspects have the option to talk to the police, but they also have to realize they have the right not to, and I don’t think that’s consistent with the presumption, as Sotomayor says, that they have waived their rights unless they explicitly “exercised” them.

This is the current Miranda warning in most states:

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed to you. Do you understand these rights as they have been read to you?”

What if the following statement were added onto the warning:

“If you wish to exercise these rights, you must explicitly tell us you are choosing to do so at any point in the interview. Do you understand?”

Thoughts?