Legal Outreach, Inc. Fall 2021 Constitutional Law Debate 8 The Court has stated that a suspect has the right to terminate interrogation at any time prior to or during the interrogation by invoking (i) the right to remain silent or (ii) right to counsel.2 If a suspect invokes the right to remain silent, the police must honor the request and no longer question the accused. However, police may re-question a suspect about the same crime if, after a break, fresh Miranda warnings are given. Moreover, asking an incarcerated individual at a later time about crimes unrelated to the reason such person is incarcerated has been found to be permissible (Howes v. Fields). If a suspect invokes the right to counsel, and does so unambiguously and specifically (e.g., the suspect says s/he wants counsel to assist with the interrogation), all questions must cease until counsel is provided. Allowing the suspect to consult with counsel and then resuming the interrogation after counsel has left does not satisfy the right – counsel must be present during the interrogation. Once the witness asserts the right to terminate interrogation and asks for counsel, restarting of the interrogation by police on any topic violates the Fifth Amendment. It is worth noting that a suspect may always waive the right to counsel if, while waiting for counsel, s/he reinitiates the questioning. A suspect may also waive all his/her Miranda rights if s/he does so knowingly, voluntarily, and intelligently. Silence or shrugging does not qualify as a waiver. Interrogation Analysis In addition to being in custody, the suspect must actually be under interrogation to require Miranda warnings. This does not mean that the police officers have to be directly questioning the suspect but can be saying or acting in a way that the police should know are reasonably likely to elicit an incriminating response from the suspect. Whether it’s reasonably likely depends on the suspect’s perceptions, not the police officers’ intent. Therefore, you need to ask yourself whether a reasonable person in the suspect’s position would think, based on the officers’ actions and words, that they were being questioned about the crime or their involvement in that crime. Voluntariness If a defendant confesses to a crime, it must be voluntary and without coercion. A confession is separate and independent of Miranda warnings. The court will examine the voluntariness of a confession whether or not the suspect has been Mirandize
I think that this is important because the cases in the voluntary section talked about how the suspect has to confess of their own free will and without intimidation. So we need to see if this was the case with Lav.