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Invoking the Right to Remain Silent

Miranda rights include two basic rights the right to remain silent and the right to have an attorney present during interrogation. As with the right to an attorney, to gain the full protection of the right to silence, a suspect must unequivocally invoke the right to remain silent. Simply remaining silent does not trigger the right to have interrogation cease.

Law enforcement officers must inform suspects of their Miranda rights to remain silent and to have an attorney present. As long as the suspect understood these rights as explained, statements made in subsequent interrogation may be admissible as evidence against the suspect if he or she did not clearly invoke the right to remain silent or the right to an attorney.

Practically speaking, this means that if police read a suspect his or her Miranda rights, the suspect understands (and even remains silent for a period), police may continue or later attempt to interrogate the suspect. The Fifth Amendment will not prevent statements made after a period of silence from being used as evidence, unless the suspect clearly communicated a desire to invoke the right to remain silent.

Even when a suspect fails to properly invoke the right to remain silent, it must be established that the suspect waived the right in order for statements made during interrogation to be admissible as evidence against the suspect. However, this waiver does not need to be explicit. Suspects can waive their right to remain silent if they proceed to make voluntary statements after being informed of and understanding their Miranda rights.

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