Hastings Constitutional Law Quarterly


The authors discuss the United States Supreme Court's decision in Davis v. United States, 512 U.S. 452 (1994), arguing that its holding-that police officers do not have to cease questioning a criminal suspect who utters an ambiguous request for counsel during custodial interrogation-depends on concepts of interpretation that have been discredited by the deconstructionist theory of Jacques Derrida and subsequent literary critics.

Derrida criticized theoretical movements, such as structuralism, that ignored the role of ambiguity in language. In turn, reacting to Derrida's emphasis on the indeterminacy of meaning, other literary critics sought criteria for "objective" interpretation, the search for which also has been a recurring issue in the law. Traditionally, scholars had pointed to an ideal of literal meaning as closely corresponding to objective reality. But various deconstructionist theorists argued that "correct" interpretation of any text necessarily involves identifying its author's intention, and that to insist on understanding an utterance in its "literal" sense (apart from such intention) is an absurdity. Unfortunately, in Davis the high court adopted such a literalist approach.

Among the "procedural safeguards" Miranda v. Arizona, 384 US 436 (1966) accorded persons in custody is "the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned" (id. at p. 444), but Miranda did not address the level of clarity required when a suspect expresses a desire to consult counsel. In Davis, the high court pronounced a standard of meaning that is theoretically contradictory and encourages courts to engage in arbitrary interpretation. Specifically, Davis requires that interrogating officers and reviewing courts are to distinguish ambiguous from unambiguous requests, and that questioning may continue if a suspect only makes an "ambiguous" reference to his or her right to counsel.

Drawing on aspects of deconstruction theory, the authors argue that the interpretive standard Davis imposes is, not only ethically unjust, but also contradictory as a theoretical matter. They conclude that allowing courts to ignore custodial circumstances in determining the meaning of suspects' utterances undercuts the normal procedure by which listeners discern meaning, ultimately diminishing Miranda's intended protections.