equally "indispensable" as it assures that the
protected "throughout the interrogation process."
then, has a
right to consult with counsel prior to questioning,
and also has
a right "to
have counsel present during any questioning" if he
must be told "that if he is indigent, a lawyer will
him." In summary, Miranda held as follows:
"...(W)hen an individual is taken into custody or otherwise deprived
of his freedom by the authorities in any significant way, and is
subject to questioning, the privilege against self-incrimination is
jeopardized. Procedural safeguards must be employed to protect the
privilege... He must be warned prior to any questioning that he has
the right to remain silent, that anything he says can be used
against him in a court of law, that he has the right to the presence
of an attorney, and that if he cannot afford an attorney, one will
be appointed for him prior to any questioning if he so desires.
Opportunity to exercise these rights must be afforded to him
throughout the interrogation... unless and until such warnings and
waiver are demonstrated by the prosecution at trial, no evidence
obtained as the result of the interrogation can be used against
d. Without prior warnings, then, there will be no waiver. The court held
that "we will not pause to inquire in individual cases whether the defendant
was aware of his rights without a warning being given." The court will not so
Regardless of the suspect's background (age, education,
intelligence, prior to contact with authorities, etc.), "a warning at the time
of interrogation is indispensable."
The warnings are a prerequisite to the
admissibility of the suspect's confession.
e. If the suspect will not waive his rights, he is not subject to being
Following the warnings, "if the individual indicates in any
manner, at any time prior to or during questioning, that he wishes to remain
silent, the interrogation must cease... If the individual states that he wants
an attorney, the interrogation must cease until an attorney is present."
suspect, as we have seen, may waive his rights "knowingly and intelligently."
An example of this would be by way of "an express statement that the individual
is willing to make a statement and does not want an attorney." A waiver "will
not be presumed simply from the silence of the accused after warnings are given
or simply from the fact that a confession was in fact eventually obtained."
f. In U.S. v. Tempia, 37 CMR 249 (CMA, 1967), the court held that Miranda
set forth "concrete rules which are to govern all criminal interrogations by
federal or state authorities, military, or civilian."
(MRE 305(d)(1)(A)) is
patterned after Miranda, and requires right to counsel warnings (in addition to
Article 31 warnings) when "the accused or suspect is in custody, could
reasonably believe himself or herself to be in custody, or is otherwise
deprived of his or her freedom of action in any significant way." The right to
counsel warnings also apply if the interrogation is conducted "subsequent to
preferral of charges or the imposition of pretrial restraint... and the
interrogation concerns the offenses or matters that were the subject of the