PART M - HOW TO HANDLE A NONWAIVER
How to Handle a Nonwaiver.
If the suspect says that he wishes to remain
silent, his wish must be honored. If he is interrogated anyway, his statement
"may not be used in evidence against him." U.S. v. Westmore, 38 CMR 204 (CMA,
The law places a "heavy burden" on the government to establish a
"knowing and intelligent waiver."
U.S. v. Rogers, 48 CMR 861 (ACMR, 1974).
When the subject says he wishes to remain silent, then, the police officer must
fully respect his choice. The right to cut off questions must be "scrupulously
honored." This does not mean, however, that the individual can never again be
questioned. The Supreme Court has held that the police can again contact the
suspect, after the lapse of a "significant period" of time. This does not, of
course, mean a moment's pause. Michigan v. Mosley, 423 US 96 46LEd.2d. 313 96
SCt 321 (1975) and U.S. v. Watkins, 34 MJ 344 (CMA 1992).
Check with JAG
before proceeding here. There is no specific point at which a time lapse will
be deemed to be "significant."
1. As opposed to simply saying he wishes to remain silent and does not wish to
be questioned, a different rule applies when the subject says he wants an
attorney. Edwards v. Arizona, 451 US 477 68 L.Ed.2d 378 101 SCt. 1880 (1981),
was decided 15 years after Miranda. At the police station, Edwards was advised
of his rights, and he said he wanted an attorney. The questioning was stopped
and he was taken to a jail cell. At 9:15 A.M. the next morning, two detectives
went to the cell and the suspect was told that he had to talk to them.
waived his rights and then confessed. The Supreme Court repeated what it had
said in Miranda -- if the suspect says that he wishes to remain silent, the
interrogation must cease.
If the subject requests an attorney, "the
interrogation must cease until an attorney is present."
a. In Edwards, then, the suspect had asserted his right to counsel. The
police, without furnishing him an attorney, returned the next morning to
confront him and obtained an incriminating statement.
The Supreme Court
"When an accused has invoked his right to have counsel present
during custodial interrogation, a valid waiver of that right cannot
be established by showing only that he responded to further police-
initiated custodial interrogation... an accused, such as Edwards,
having expressed his desire to deal with the police only through
counsel, is not subject to further interrogation by the authorities
until counsel has been made available to him, unless the accused
himself initiates further communication, exchanges, or conversations
with the police."
In other words, the Supreme Court has distinguished between a suspect who
simply invokes his right to remain silent, and the suspect who invokes his
right to counsel. In the case of the right to counsel, the police must do more
than simply stop the interrogation for a "significant" period. They cannot go
back to the subject at a later time and interrogate him (even after the lapse
of a significant period of time). Further questioning is prohibited unless the
suspect initiates it, or unless counsel has been made