Craig KuharyCriminal Defense
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When can a Miranda rights waiver be found unconstitutional?

When the police investigate crimes, they often depend on information provided by suspects and witnesses to begin to form their conclusions about how the crime progressed and exactly who was involved when. This process has its flaws, though, and one of them is that during the early investigative stages, it is easy for witnesses to find themselves under intense scrutiny as police begin searching for a suspect. Even worse, it is not uncommon for such witnesses to find themselves under suspicion because of small inconsistencies that result from being asked the same or very similar questions repetitively.

This is why it is important for you to maintain your right to remain silent if you are arrested. Under those circumstances, the police are already looking at you as a suspect, and anything you say is likely to be interpreted in that light. This means that even if you know you are not guilty, the police will attempt to undermine information that does not fit their theory of events. That's why consulting with an attorney is so important, and why the police are supposed to advise you of your Miranda rights when you are arrested.

Miranda rights waivers

Often, people will choose to answer questions before contacting an attorney. This results in a waiver of the protections that are in place to help prevent accidental distortions of the facts that are caused by human nature and the police investigative process. When this happens, the information can be very difficult to suppress because it is considered to be voluntarily offered. There are some situations where the court finds the waiver to be unconstitutional, however.

Unconstitutional Miranda waivers

Generally speaking, the issue that determines if confessions and other incriminating statements are constitutional is whether they were voluntary. The court considers a few actions to compromise the "voluntariness" of confessions:

  • The use of force
  • Lengthy interrogations
  • Deprivation of food and clothing
  • Threats and promises to yourself or your family
  • Being held incommunicado

The National Constitution Center warns readers in an article on the history of Miranda rights that the warning is only read when questioning is imminent, but that anything you say after being taken into custody and before the warning can still be used against you.

Remember, if you are arrested, your first step should be to contact an attorney. If possible, avoid answering questions or making statements until you have that legal advice in place. If you suspect that you were manipulated into waiving your Miranda rights, a criminal defense attorney is also your best chance to make sure you get real justice.

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