Effect Of Implementing The Rights
Whenever a subject invokes a right in response to an Article 31(b) or Fifth or Sixth Amendment warning, the first thing that must happen is the same: the interrogation must stop immediately. What may happen next is dependent on what source of self-incrimination law applies and what right has been invoked. If the subject invokes the right to remain silent under Article 31(b) or
, he or she is entitled to a temporary respite from questioning that the government must scrupulously honor. Once honored, the government may re-approach the subject for further questioning. If the subject invokes the right to counsel under the Fifth Amendment, the subject cannot be questioned further unless: (1) counsel is made available; or (2) the subject re-initiates questioning. In a continuous custody setting, counsel is made available when counsel is present. When there is a break in custody, counsel is made available when the subject has had a real opportunity to seek legal advice. If the subject has not had a real opportunity to seek legal advice, then counsel must be present. If the subject re- initiates the questioning, the investigator must obtain a valid waiver of rights before continuing the interrogation. If the subject invokes the right to counsel under the Sixth Amendment, the subject cannot be questioned further unless: (1) counsel is present; or (2) the subject re-initiates questioning. For purposes of the Sixth Amendment, continuous custody or a break in custody is irrelevant. The questioner must clarify any ambiguous invocation of rights before questioning may begin. However, if the subject initially waives his rights and begins making a statement, any subsequent invocation of his rights must be unambiguous. Ambiguous requests do not have to be clarified by the questioner and the interrogation may proceed.