Waiving Miranda Rights

To expressly waive Miranda rights, the suspect would state (or sign something saying) that they waive the right to remain silent or the right to have an attorney present. This written statement would indicate that the police read the suspect the Miranda warning. It must also state that the suspect chose to answer questions related to the criminal charges filed against them.

When an officer arrests someone or takes them into police custody, the individual has certain rights. The U.S. Supreme Court created these rights in its decision in Miranda v. Arizona. This is why these rights are called "Miranda rights."

Officers must tell the suspect they have a Fifth Amendment right against making self-incriminating statements. This is true whether the police suspect they've committed a felony or misdemeanor. Officers must also tell suspects they have a right to an attorney. Finally, the police must tell suspects that "anything they say can and will be used against them in a court of law."

In many ways, the United States Supreme Court's recognition of Miranda rights was one of the most significant advancements for protecting individual rights during the criminal justice process.

The court may prevent the state from using any subsequent statements made by the suspect at trial if:

  • The police do not advise the suspect under custodial interrogation of their Miranda rights
  • The suspect invokes their rights, but the government persists in questioning them

The judge will consider the totality of the circumstances in determining whether the suspect's statements were voluntary.

Do Probation Officers Have To Read the Miranda Warning?

You may be wondering if all members of law enforcement must read the Miranda warnings when questioning a suspect. For the most part, this is true. However, it does not apply to probation officers. Nor does it apply when law enforcement isn't questioning a suspect. It only applies when an officer takes a suspect into police custody for an interrogation.

Waiving Miranda Rights: An Overview

Law enforcement officers will not automatically assume a suspect in a criminal case plans to invoke their Fifth Amendment rights during police questioning. Nor will they assume that a suspect wishes to remain silent or wants an attorney.

To gain the complete protection of Miranda rights, suspects must clearly invoke either their right against self-incrimination or their right to counsel. If a suspect waives their Miranda rights, the police officers can continue their interrogation.

Suspects can waive their constitutional rights to remain silent or to an attorney expressly or implicitly. An implied waiver means that the suspect behaves in a way that indicates a knowing and voluntary waiver of Miranda rights. A judge is more likely to determine that a defendant waived their rights if they gave an express waiver.

If it isn't a valid waiver, the prosecutor won't be able to use any statements the suspect made due to the exclusionary rule. The exclusionary rule requires evidence obtained in violation of the Fourth, Fifth, or Sixth Amendments to be suppressed.

Implied Waiver of Miranda Rights

Before a suspect can waive their Miranda rights, law enforcement must inform them of those rights. Once the officer has mirandized the suspect, the individual must confirm that they understand the rights as explained to them. From this point, the suspect's behavior can constitute an implied waiver of Miranda rights even if the suspect never explicitly states that they want to waive them.

Let's assume, for example, that a police officer informs a suspect of their right to remain silent. They also tell the suspect they have the right to have an attorney present. Imagine that the suspect proceeds to make self-incriminating statements during the police interrogation. This may constitute an implied waiver since they continued to make statements after the police notified them of their Miranda rights.

This implied waiver can also apply if the suspect is silent for a while before making the self-incriminating statements. Berghuis v. Thompkins, a Supreme Court case where the officers read the suspect his Miranda rights, but he remained largely silent during a three-hour interrogation, illustrates this point. His only statement was "yes" when asked whether he prayed to God for forgiveness for his crimes.

The Supreme Court held that, although the suspect was silent after the police read him his rights and throughout most of the interrogation, this did not constitute an invocation of his right to silence or counsel.

In other words, unless there's an explicit invocation of Miranda rights in words or action, police can presume that a suspect is implicitly waiving their rights. The police can continue questioning the suspect until there is an explicit invocation. So, even if a suspect thinks they're 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

Even if a suspect waives their Fifth Amendment rights, they can change their mind later. It's common for suspects to invoke their Miranda rights once they arrive at the police station.

The courts have held that, just because a suspect initially answers the officer's questions, they can stop at any point. They can also ask to have a lawyer present at any time after the interrogation begins.

Have Additional Questions About Waiving Miranda Rights? Ask a Lawyer

If law enforcement questions you, you have the right to remain silent. This is true whether the police suspect you of committing a crime. You can also request to make a phone call to your criminal defense lawyer. You can ask that one be appointed if you don't have a lawyer.

If you have questions about what constitutes a waiver of your Miranda rights, contact a criminal law attorney. An experienced criminal defense attorney can help. Make sure to tell your attorney what happened during the interrogation. Let them know if there was police coercion involved and whether you feel law enforcement violated your rights.

Reach out to an attorney in your area to learn more. You can also read the Supreme Court's full opinion in Miranda v. Arizona on FindLaw's Cases & Codes. This will give you a better understanding of our criminal justice system and determine what other constitutional protections you're entitled to.

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