Section 11.21 Waiver After Assertion of Right to Silence: The Problem of Multiple Interrogations

LibraryCriminal Practice 2012 Supp

a. (§11.21) Waiver After Assertion of Right to Silence: The Problem of Multiple Interrogations

Miranda expressly requires that, once the accused indicates a desire to remain silent, the interrogation must cease, even if the accused previously waived that right. Miranda v. Ariz., 384 U.S. 436, 473–74 (1966). That does not preclude the accused, however, from later knowingly and intelligently waiving the right to remain silent. State v. Morris, 719 S.W.2d 761 (Mo. banc 1986); State v. Martin, 820 S.W.2d 605 (Mo. App. E.D. 1991), cert. denied, 505 U.S. 1208 (1992).

In Michigan v. Mosley, 423 U.S. 96 (1975), the Supreme Court addressed the related question of when police may resume interrogation once the accused has invoked the right to silence and terminated the interrogation. In Mosley the Court noted the following four factors as particularly significant in proving a valid waiver during the second interrogation:

1. The first interrogation ceased immediately upon the defendant’s assertion of his right to remain silent.

2. A significant period of time elapsed between the first and second interrogations.

3. The police gave the defendant a fresh set of warnings before the second interrogation.

4. The second interrogation concerned new subject matter.

In Oregon v. Elstad, 470 U.S. 298 (1985), the Supreme Court held admissible a second confession obtained after the first confession was obtained without the benefit of the Miranda warnings.

In State v. Bucklew, 973 S.W.2d 83, 87–89 (Mo. banc 1998), the Court found no Miranda violation when the defendant initially invoked his right to remain silent after arrest. The defendant was injured in a gun battle with the police and was hospitalized. The police approached the defendant five days later while the...

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