3. If charges have been preferred against the subject and he:
a. invokes his right to remain silent,
(1) questioning must cease immediately.
(2) The government may reinitiate questioning after a significant period of time. Michigan v.
Mosley, 423 US 96, 46 L.Ed 2d 313, 96 S Ct 321 (1975).
(3) The subject may reinitiate contact and affirmatively waive his right to have counsel present. U.S.
v. LeMasters, 39 MJ 490 (CMA 1994). The investigator should annotate this affirmative waiver in the comments
section of DA Form 3881.
b. invokes his right to counsel,
(1) question must cease immediately.
(2) counsel must be present before any subsequent interrogation may proceed. MRE 305(e)(2).
(3) The subject may reinitiate contact and affirmatively waive his right to have counsel present.
MRE 305(g)(2)(c). The investigator should annotate this affirmative waiver in the comments sections of DA
Form 3881.
This area of the law is in a state of change. If you have questions concerning when you may reinitiate
questioning, consult your servicing office of the Staff Judge Advocate.
Rights Waiver
The issuing of MIRANDA and Article 31 rights protect a subject's right to silence. However, these protective
rights do not forbid a subject to issue statements. A person is always free to speak or otherwise cooperate if he or
she so wants. If the person wants to discuss the case, he or she then agrees to "give up" or "waive" the right to
silence. In order to be legal, this waiver of rights must meet two tests:
o
It must be knowingly made.
o
It must be voluntarily made.
Knowingly Made Rights Waiver
A "knowingly made" waiver of rights requires that the subject--
o
Knows and understands the rights he or she is giving up.
o
Must have the competency, by way of age and mentality, to understand the results of giving up his
rights.
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MP2002
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