4.6.5 Waivers

4.6.5 Waivers

As is true of most constitutional protections, rights grounded in Miranda may be waived.⁹⁵ While the waiver need not be express or explicit,⁹⁶ waiver will not be found simply because the suspect later spoke.⁹⁷ The government has "a heavy burden . . . to demonstrate that the defendant knowingly and intelligently waived [the rights]."⁹⁸ The prosecution must show that the defendant both understood the rights and voluntarily relinquished them.

The waiver issue is often raised. Judges must look to a variety of factual circumstances to determine if the waiver was both knowing and voluntary. The problem is particularly acute with defendants whose native language is not English,⁹⁹ who have mental problems,¹⁰⁰ or who are minors.¹⁰¹

Prosecutors often teach courses at law enforcement academies or professional continuing education for law enforcement personnel. Interrogating officers should be encouraged to obtain the most explicit and express waiver possible, in writing if feasible. "Do you understand your rights as I have explained them to you?" is a great start, but too many officers immediately launch into the interrogation after receiving an affirmative answer to that single question. It is much better practice to continue, "Do you want to give up those rights? Will you talk to me without a lawyer here?" If a written statement is taken, having those questions, or words to that effect, at the beginning, with the suspect's initials after the word "yes" to each question, takes the waiver issue out of the case.

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Notes:

^[95] . See supra Chapter 2. The seminal waiver case is Johnson v. Zerbst, 304 U.S. 458 (1938):

It has been pointed out that "courts indulge every reasonable