Pg 27

Question 1

What is the way to get a valid Miranda waiver?

Answer 1

This can be express or implied, and must be voluntary, knowing, and intelligent. If it is implied it is clearly inferred from actions or words of the person interrogated.

Question 2

What is a waiver of Miranda?

Answer 2

Intentional relinquishment or abandonment of a known right or privilege

Question 3

If a suspect waives his Miranda rights, what does that open him up to?

Answer 3

Questioning on all offenses possible, not just the one that the suspect thinks he is being brought in for

Question 4

Can anyone beside the suspect invoke his Miranda rights for him?

Answer 4

No

Question 5

If a suspect agrees to talk but refuses to make a written statement, is his agreement to talk something that waives his Miranda rights?

Answer 5

Yes, his ignorance of the full consequences of his decision don’t preclude the voluntariness of the decision

Question 6

If at the time that a defendant waives his Miranda rights he was in a psychotic state and believes that the voice of God ordered him to confess, is a waiver still effective?

Answer 6

Yes, because Miranda protects against compulsion from government, not other sources like God. If there is no police coercion or overreaching, there is no problem

Question 7

Who has the burden to prove a Miranda waiver?

Answer 7

The government must show that the suspect understood his Miranda rights and voluntarily, knowingly, and intelligently waived them.

Question 8

Is it necessary that the suspect sign something in order to waive his Miranda rights?

Answer 8

No, as long as he says he understands them and then answers, the waiver is implied

Question 9

Does the defendant have to be competent in order for a waiver of Miranda to be valid?

Answer 9

It is presumed that the defendant has the capacity to understand and the burden is on the defendant to prove otherwise

Question 10

What is the rule with regard to minors waving Miranda rights?

Answer 10

– Majority: totality of the circumstances approach
– Minority: interested adult rule which says that a youth waiver is not effective unless the youth is allowed to consult with an adult that is interested in his welfare.

Question 11

What are the circumstances when a waiver of Miranda rules is invalid?

Answer 11

If the person is:

• mentally retarded
• has a low IQ
• has limited schooling

Question 12

What does the research say with regard to Miranda waivers for mentally retarded people?

Answer 12

People with IQs around or under 70 don’t understand Miranda warnings so the courts need to use totality of the circumstances

Question 13

What is the problem with juveniles with regard to Miranda waivers?

Answer 13

They are eager to comply with adult authority figures, and are impulsive, immature, and can’t recognize or weigh the risks, so they are at greater risk for false confessions

Question 14

How is police conduct relevant with regard to a Miranda waiver?

Answer 14

It is relevant to show that the defendant didn’t voluntarily waive his rights and the totality of the circumstances are used to determine if the waiver happened.

Question 15

If a Miranda waiver has occurred but coercion is present, what happens?

Answer 15

Waiver is invalid. This can happen from something like a super long interrogation, incommunicado incarceration before the statement, in custody for a long time before being mirandized, persistent questioning, trickery that mislead the suspect about his rights, etc.

Question 16

Do the cops have to tell the defendant that his attorney tried to see him?

Answer 16

No, anything outside of the defendant’s presents or that is unknown to him has no bearing on his ability to waive his Miranda rights

Question 17

What are the different types of Miranda waivers?

Answer 17

• express waiver
  – implied waiver
  – limited or qualified waiver
  – waiver after asserting rights

Question 18

What is an express waiver of Miranda rights?

Answer 18

Written or oral statements of waiver where the defendant expressly says he is willing to make a statement, he doesn’t want an attorney, and that his statement constitutes a waiver.

Question 19

What is an implied waiver of Miranda rights?

Answer 19

Scrutinize the defendant’s words and actions in order to determine if he knowingly and voluntarily waived his rights

Question 20

Can silence alone be an implied waiver of Miranda?

Answer 20

No, but if it is coupled with understanding of rights and a course of conduct that shows a waiver, like an incriminating statement, it can be.

Question 21

If a defendant initiates conversation immediately after Miranda, is a waiver likely?

Answer 21

Yes

Question 22

Can an implied waiver of Miranda include conduct short of an express waiver, such as a cooperative attitude or a nod or shrug?

Answer 22

Yes

Question 23

If someone is silent after they are given the Miranda warning, does that presume that they waived the rights?

Answer 23

No

Question 24

What is a qualified or limited waiver of Miranda?

Answer 24

Conduct that seems like a waiver coupled with conduct that seems like refusal or an assertion of rights.

This could include refusing to sign a waiver form but agreeing to talk. That would be an oral waiver

Question 25

If someone misunderstands that their oral statements can be used against them after they have been mirandized, do the police need to clear this up?

Answer 25

Not if it would be obvious to reasonable observers

Question 26

What is involved in a waiver of Miranda rights after asserting your rights?

Answer 26

This involves the right to silence and the right to counsel

Question 27

If a defendant invokes his right to silence after being mirandized, what must the police do?

Answer 27

Stop the interrogation

Question 28

If a D invokes his right to silence after being mirandized, and the police stop the interrogation, but two hours later different cops mirandize him again and ask questions about an unrelated crime and get an incriminating statement, is that OK?

Answer 28

Yes, because the first cops immediately stopped questioning and they didn’t begin again until a significant period of time had passed, at which point they gave a fresh Miranda warning, and the new crime wasn’t the subject matter of the prior investigation

Question 29

If a suspect invokes his right to silence after being mirandized, at what point must the police cut off questioning?

Answer 29

Immediately upon invocation of the right. At that point they have to cease interrogation, suspend all questioning for a significant period of time, and give a fresh set of warnings at the outset of a second interrogation

Question 30

If someone wants to invoke the right to counsel, how must they do this?

Answer 30

Unambiguously. They must articulate their desire for counsel sufficiently clearly that reasonable cops would understand it to be a request for an attorney

Question 31

After someone has invoked the right to counsel, the police officers cannot re-approach that person unless what?

Answer 31

The defendant initiates conversation

Question 32

If the defendant has invoked his right to counsel and then he initiates conversation with police, what are the two views of this?

Answer 32

– Majority: inquiries that are related to routine incidents of the custodial relationship are not enough to be a waiver of Miranda, but questions that evidence his willingness or desire for a generalized discussion about the investigation count
– Minority: only communication about the subject matter of a criminal investigation counts. So asking for water or to use the phone are considered to be routine and not a desire for a generalized discussion about the investigation. The same is true for things that relate to routine incidents of the custodial relationship

Question 33

If a guy invokes his right to counsel, but then the next morning more police re-Mirandize him and he agrees to talk about the same crime, is that allowed as a waiver of Miranda?

Answer 33

No, because he already invoked his right to counsel

Question 34

If there is a break in custody after D has invoked his right to counsel, what happens?

Answer 34

That concludes his “hands off” status and he can then be questioned

Question 35

Is invoking a right to counsel under Miranda offense specific?

Answer 35

Yes, asking for a lawyer for one offense doesn’t stop questioning about a different offense.