Suspect Invokes Miranda

by Charles Gillingham

I recently got a call from a detective questioning whether he could question a suspect who invoked the right to an attorney when that suspect called him and told the detective he wished to discuss the case. The answer is fairly straight forward but worth a brief review and apply to cases where the suspect invokes the right to counsel or the right to remain silent.

Suspect Changes Mind

After a suspect invokes either the right to remain silent or the right to counsel questioning on that case may begin again if the suspect tells the officer she wants to talk about the crime. The officers must insure four things have taken place to have that discussion be admissible.

1. The suspect must have initiated the questioning.
The court looks to whether the suspect somehow contacted the officer. Detectives can leave a card for a suspect when she invokes and invite the suspect to call at a later date. If the suspect says she might be willing to talk later, officers can check at a later date. If the suspect invites you to come and chat at a later time you can.

2. The suspect freely re-initiated contact.

The suspect must not have been threatened, bullied, or coerced to re-open questioning. Any threats of the prosecutor or court going hard on a suspect may vitiate the freely initiated contact.

3. The suspect agrees to open up general questioning.

You are not limited to the case that you are investigating, you can question about any other crime when the suspect re-initiates questioning. The only thing courts look at under this prong is that the suspect must be willing to talk about the case generally, not questions for instance about the procedure after arrest, talking about a deal, talking about another case or offering to help. The request by the suspect must be one to have a general discussion. Clarify what the suspect wants to talk about prior to having the conversation.

4. Read the Miranda warnings.

If you keep these four requirements in mind, a statement made by a suspect after she invoked will be admissible against her.