Miranda Rights; Did I Waive Them?

How do I know if I waived my right to remain silent?

The choice to remain silent is so important to the defendant’s rights in the criminal justice system that the courts have held that when a person declines a waiver (remaining silent), then that choice must be “scrupulously honored” by law enforcement officers.[1]   If you have questions about your silence or lack thereof, your Virginia Beach Criminal Defense Attorney can help assess your case.

Just because an individual chooses to remain silent does not mean that the police can not re-approach a defendant.  In one widely publicized case out of Michigan, law enforcement wished to question the defendant about two crimes, but he chose to remain silent.  It was only hours later when the accused was transported to another location, and given Miranda warnings once again, and was questioned by other officers about a third crime.  The defendant in that case waived his right to remain silent.  Your understanding of your rights is critical to your case going forward, especially if you have relatively low experience when dealing with police and investigators.  When you meet with your Virginia Criminal Defense Lawyer, always be truthful.  He is there to help you, and can only assist you if you are willing to work with him.  He’s on your side.

Below, we have provided our readers with the five main factors relevant to determine if a defendant’s right to remain silent was “scrupulously honored,” as spelled out by the Virginia Supreme Court:

 (In a given set of facts, the more “yes” answers to the below statements will be better for the prosecution)


(1)   The defendant was first advised he was under no obligation to answer any questions;

(2)   The initial interrogation immediately ceased and there was not an attempt to persuade or coerce the defendant to change his mind;

(3)   Much time passed during the resumption of questioning;

(4)   The defendant was given Miranda warnings prior to the second round of questions; and

(5)   The later interrogation was focused on a crime not inquired upon during the first interrogation

[1] Michigan v. Mosley, 423 U.S. 96, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975); Johnson v. Com., 220

Va. 146, 255 S.E.2d 525 (1979).