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Waiving Miranda Rights

In many ways, the Supreme Court’s recognition of Miranda rights was one of the most significant advancements for the protection of individual rights during the criminal justice process. Miranda rights apply whenever a suspect is in a custodial interrogation and include the rights to remain silent and to have an attorney present. If suspects under custodial interrogation are not advised of their Miranda rights or if they invoke their rights, but the government persists in questioning them, then the court may prevent any subsequent statements from being used against them at trial.

However, 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 implied waiver can also apply if the suspect is silent for a period of time before making the self-incriminating statements. This is best illustrated in a Supreme Court case where a suspect was read his Miranda rights but remained largely silent during a 3 hour interrogation. His only statement was “yes” when asked whether he prayed to God for forgiveness for the crime. The Supreme Court held that, although the suspect was silent after being read his rights and throughout most of the interrogation, this did not constitute an invocation of his right to silence or to counsel.

In other words, unless there is a clear invocation of Miranda rights in words or action, police can presume that a suspect is implicitly waiving those rights and can continue questioning until there is a clear invocation. So, even if a suspect thinks he or she is exercising their Miranda rights, their behavior could signal otherwise to law enforcement resulting in possible harm to them later at trial.

A Waiver Need Not Last Forever

Suspects are not locked into any initial waivers, whether made expressly or implicitly. Instead, they always have the right to invoke their Miranda rights at a later time. If so, any statements obtained after the rights are invoked may be barred at trial.

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Need to find local counsel for yourself or someone you know before answering police questions? Concerned you may have said something damaging to the police and unsure whether your Miranda rights were violated? Miranda rights are useless if they aren't exercised. Contact a qualified local attorney for a free legal review to discuss the specifics of your case.

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