Fifth Amendment -- Asserting Miranda Rights Flashcards
How can a suspect assert his 5 A right to remain silent?
A suspect must make an unambiguous statement that they want to remain silent.
Mere silence is NOT enough.
How does the court determine if the police honored the suspect right to remain silence?
The court looks to see whether the Os SCRUPULOUSLY HONORED the suspects right to remain silent.
To determine this they look at the following factors:
- did the original interrogation cease immediately?
- was there a passage of time?
- were there new warnings & waiver?
- were they being questioning about a different crime?
- did the questioning occur by different officers?
- did the questioning occur at different locations?
Is there a miranda violation where the defendant was taken into custody for a robbery and then mirandized, defendant asserts right to remain silent and is placed in a jail cell, then later taken out and questioned about a different crime?
No, since there was a passage of time between the first and second questioning there is no violation. Additionally, they were asking about a different time.
NOTE, if he said I want a lawyer that would have been better, because then the 5 A can apply to all crimes and not just specific ones.
What happens when the D asserts his right to counsel?
No interrogation can occur, UNLESS D initiates conversation & waives his/her right to counsel.
NOTE: any subsequent waiver is also invalid, there is a PRESUMPTION OF INVOLUNTARINESS for any subsequent.
Right to counsel is treated more broadly than the right to remain silent, it is not crime specific.
Can O reinitiate questioning after D invokes right to counsel?
No, unless counsel is present.
NOTE: This applies even if D consulted with counsel before the interrogation resumes.
What does an assertion of a right to counsel need to be in order to be valid?
A suspect needs to clearly assert his right to counsel.
It must be clear enough to alert a reasonable police officer under the circumstances that the suspect is requesting an attorney.
Typically how long does one’s assertion of right to counsel last?
2 weeks.
Os can re-initiate interrogation with D, after they are “out of custody” for 14 days or more.
What happens when the defendant ambigously asserts his right to a lawyer?
The officers do not have to clarify the ambiguous statement, they may continue to question the D.
Only, “I want a lawyer” successfully invokes the right to counsel.
However, if the suspect is a minor, then pursuant to J.D.B. there may be a lower standard for the assertion and ambiguous statements be appropriate.
Is a right to speak with a probation officer the same as I want a lawyer?
No.
