Officer showing photo to witnessThis is the fourth post in our series on the handling of Little Rock, Arkansas Miranda waivers in criminal cases. Our last article discussed the legal standard for a Miranda waiver. We also provided information on what occurs when that standard is not sufficiently satisfied. In this article, we will discuss the difference between an express waiver and an implied one. Whether or not you waived your rights is an issue you should discuss with an attorney. If you have been arrested, contact our office today to speak with a lawyer.

A suspect can waive his or her rights expressly or by implication. An express waiver occurs when one verbally states that they are waiving their rights or signs a form which expresses that intent. This is the most common form of waiver. However, it is also possible for one to waive his or her rights through implication. For example, suppose that after being informed of their Miranda rights, the accused begins to make statements concerning his guilt. A court may find that those statements were given voluntarily and that because the defendant had been read a Miranda warning, the statements implied that there was an intent to waive his or her rights. Further, the incriminating statements would also likely be admissible if that defendant confessed after a lengthy period of silence. Although the Miranda warning informs an individual that he or she has a right to remain silent, a suspect must clearly invoke their right to this protection. This means that if one chooses to remain silent without expressing their intent to do so, either through word or action, then any statement made can still be used against them. Thus, choosing to speak after a period of silence also implies waiver.

Furthermore, just as the invocation of a right must be clear and unequivocal, so must the waiver of a right. This means that officers may not continue to question a suspect if their intention is not clearly known. To expound upon the previous example, suppose after being read a Miranda warning the actions of the accused indicate that he doesn’t completely understand the warning. This may include statements such as “Do I need a lawyer?” or “I don’t know who to call.” In these instances, the officer is to remind the suspect of his or rights and answer any questions related to the warning before continuing with an interrogation. If one believes that they have mistakenly waived their rights, the best thing to do is to refuse any further questioning and ask to speak with a lawyer. It is not uncommon for law enforcement officers to attempt to persuade a suspect that it is in their best interest to speak to them freely. However, it is important to remember that police officers are interested in “finding their man” and are not truly interested in being an advocate. An experienced criminal defense attorney can review any statement you may have made to police and determine whether it can be suppressed or it was unlawfully obtained. This is why you should retain counsel immediately upon arrest to help ensure that your rights will remain protected throughout the process.

Contact our office to schedule an initial consultation. Our Little Rock lawyers are ready to assist you. We also handle matters in Fayetteville, Fort Smith, Springdale, Jonesboro, North Little Rock, Conway, Rogers, Pine Bluff and throughout the rest of the state.

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