Waiving Miranda Rights
Miranda rights the right to remain silent and to have an attorney present during interrogation protect suspects from having statements they make during interrogation used as evidence against them in criminal proceedings. If a suspect under custodial interrogation makes statements without an attorney present, those statements may only be used as evidence if the suspect waived his or her right to remain silent and right to an attorney.
To gain the full protection of Miranda rights, suspects must clearly invoke either the right to remain silent or the right to an attorney, and must not waive their Miranda rights.
Suspects can waive their right to remain silent or their right to an attorney either expressly or implicitly. To expressly waive Miranda rights, the suspect would state (or sign something stating) that he or she waives the right to remain silent or the right to have an attorney present. Implied waiver means that the suspect behaves in a way that indicates a knowing and voluntary waiver of Miranda rights.
Implied Waiver of Miranda Rights
Before a suspect can waive his or her Miranda rights, he or she must first be informed of those rights, and must understand the rights as explained to them. From this point, the behavior of the suspect can constitute implied waiver of Miranda rights even if the suspect never explicitly states that he wants to waive them.
Let's assume, for example, that after being informed of his right to silence and to an attorney, a suspect proceeds to make self-incriminating statements during interrogation. He may be found to have waived his right to silence by having been notified of his Miranda rights, understanding those rights, and then proceeding to make self-incriminating statements without an attorney present. This can be true even if the suspect is silent for a period of time before making the self-incriminating statements. The US Supreme Court has held such a course of conduct to indicate that the suspect intends to waive his or her Miranda rights.