The Miranda rights include the right to remain silent and the right to an attorney. Once a suspect tells the police that they wish to exercise either of these rights, the police generally must stop questioning them. However, there are some situations in which the suspect may waive their Miranda rights, which allows the police to resume questioning them. Any waiver must be voluntary rather than coerced by law enforcement. A court will closely review the circumstances of the waiver to make sure that the defendant understood their Miranda rights and that the police did not browbeat or manipulate them into waiving their Miranda rights.
It is important to be aware that you can invoke your Miranda rights at any time after you have been informed of them. Failing to invoke them immediately does not mean that you cannot invoke them later in the questioning process. However, statements that you made before invoking your rights likely will be admissible.
Stopping and Restarting Questioning
Invoking the right to counsel requires the police to stop questioning a suspect until their attorney is present. (This can be either a private attorney or a public defender.) Meanwhile, invoking the right to remain silent does not prevent the police from asking more questions at a later time, as long as they honor the suspect’s right to remain silent. It can be challenging to determine whether law enforcement has done enough to honor the suspect’s right to remain silent. They may be able to ask the suspect questions about a different crime without infringing on the right, or they may be able to restart questioning after issuing a new set of Miranda warnings.
A Waiver Is Not Forever
An individual can change their mind at any time and invoke their Miranda rights, even if they have already spoken to the police. However, any statement that the individual made before invoking their rights remains admissible.
Sometimes a suspect will restart the conversation with the police voluntarily after invoking their right to remain silent. The police will be able to continue with the interrogation, as long as they give the suspect a new set of Miranda warnings first. If the suspect does not invoke their right to remain silent again after the new set of warnings, their statements in the ensuing conversation probably will be admissible.
Working Around the Right to Counsel
Sometimes a suspect will invoke their right to an attorney only in a limited context. They might ask to have an attorney review a statement that they are asked to sign, without exercising their right to an attorney in response to the Miranda warnings. The police then may be able to interrogate the suspect about matters that are unrelated to the statement, although they must wait for the attorney to arrive before asking them to sign the statement.
If law enforcement releases a defendant from custody, any assertion of the right to counsel does not carry over to a period of detention that occurs a significant time later. Law enforcement will need to issue Miranda warnings to the defendant again if they take them into custody for a second time. The defendant will need to invoke their right to counsel again, or the police will be able to start interrogating them without the presence of their attorney.
Invocation Is Not Forever
Miranda rights do not apply endlessly once invoked. If an individual leaves police custody and returns or is brought back into custody at a later date (courts generally say 14 or more days later), they will need to invoke their Miranda rights once more, or they will be waived.