Waivers Flashcards
Does a waiver need to express to be valid?
No. A waiver can be implied through conduct.
Is mere silence enough to invoke a waiver?
No. Mere silence is not enough to invoke a waiver. But, silence with an understanding of their rights and conduct indicating a waiver can support a reasonable inference of a waiver.
Are oral waivers acceptable?
Yes.
Under Berghuis v. Thompkins (2010), can a suspect stay silent and invoke their right to remain silent?
No. A suspect must invoke their right to remain silent unambiguously. Simply not saying anything will not be enough to invoke their rights. Until the suspect says otherwise, the police may infer a waiver of the suspects rights.
What must the police show to prove an implied waiver?
1) a waiver of rights;
2) uncoerced statements.
Is anyone off limit to waiving their rights?
No. The police may approach anyone to make a custodial arrest, read them their Miranda rights, and do an interrogation.
Can a suspect anticipatorily assert their Miranda Rights?
Probably not. Because Miranda only applies during a lawful custodial interrogation. The person doesn’t know if he will be in a lawful custodial arrest interrogation again, so they cannot invoke these rights before there is a need.
