2.5.3 Privilege Against Self-incrimination

• Library: Criminal Procedure in Practice (ABA) (2018 Ed.)

2.5.3 Privilege against Self-incrimination

In the case of a confession that is given in response to custodial interrogation, under Miranda, the government must prove "that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel" before being questioned.¹¹⁹ This inquiry ultimately examines the totality of the circumstances surrounding the waiver.

While mere silence is not enough to waive one's Miranda rights,¹²⁰ an express written or oral statement of waiver of the rights is also not required. The Supreme Court has held that "courts must presume that a defendant did not waive his rights; the prosecution's burden is great; but in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated."¹²¹ When a suspect speaks after hearing the right to remain silent, the words count in this calculus of actions and may indicate waiver.¹²² Showing the competency of the defendant to understand the Miranda warnings is part of the burden the government must bear.¹²³ A waiver of Miranda will be found to be invalid if it was obtained by a promise of some benefit, by a threat of some adverse consequence, or under generally coercive circumstances, such as lengthy interrogation or incommunicado incarceration.¹²⁴ Events occurring outside the presence of the suspect, including the police withholding information that an attorney seeks to consult with him, normally have little bearing on the voluntariness of a waiver of Miranda.¹²⁵

Finally, special rules apply once an individual affirmatively claims the privilege against self-incrimination. If a suspect raises the right to remain silent, he...