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Terms in this set (91)

After receiving Miranda warnings, a detainee has the option to either:

1) Do Nothing:
If the detainee does not respond at all to Miranda warnings, the Court will not presume a waiver, but neither will the Court presume that the detainee has asserted a right to remain silent or to consult with an attorney. Therefore, the police may continue to question the detainee.

2) Waive Miranda Rights:
The detainee may waive his rights under Miranda. To be valid, the government must show by a preponderance of the evidence that the waiver was knowing and voluntary.

>>> The Court will look to the totality of the circumstances in determining whether this standard was met; however, if it appears that the government can show that the detainee received Miranda warnings and then chose to answer questions, that is probably sufficient.

3) Invocation of Right to Remain Silent:
If the detainee indicates that he wishes to remain silent, the police must scrupulously honor this request by not badgering the detainee. To be effective, the detainee's indication must be explicit, unambiguous, and unequivocal (e.g., the accused's failure to answer does not constitute an invocation of the right to remain silent).

>>> In any case, the Supreme Court has allowed later questioning to occur on an unrelated crime.

4) Invocation of Right to Counsel:
If the detainee unambiguously indicates that he wishes to speak to counsel, all questioning must cease until counsel has been provided UNLESS the detainee: (1) later waives his right to counsel (e.g., by reinitiating questioning) or (2) is released from the custodial interrogation back to his normal life and 14 days have passed since release.

>>> A request for counsel must be specific (i.e. ,indicate that the detainee desires assistance in dealing with interrogation).

>>> Allowing the detainee to consult with counsel and then resuming interrogation after counsel has left generally does NOT satisfy the right to counsel—counsel must be present during the interrogation unless the detainee has waived the right.