- A subject may invoke any or all of his/her rights either prior to or during an interrogation. Whether invoked in response to an Article 31(b) or
warnings, the right to remain silent entitles a subject to a temporary respite from interrogation. There is no per se prohibition against re-approaching a suspect following invocation of the right to remain silent.
- Factors to consider in determining if the PASI has been violated include: which right was invoked, who initiated communication, subject matter of the communication, when the communication took place, where the communication took place, and the time between invocation of the right and the second interview.
See generally Michigan v. Mosley
, 423 U.S. 96 (1975) (suspect’s “right to cut off questioning” and remain silent was “scrupulously honored” when first officer stopped questioning on robbery after suspect invoked
right to silence and second officer, after a lapse of over two hours, re-advised the suspect of his rights and questioned him on unrelated murder).
- United States v. Watkins
, 34 M.J. 344 (C.M.A. 1992). CID “scrupulously honored” the accused’s Fifth Amendment “right to cut off questioning,” (i.e., right to silence) when the agent immediately ended the interview, permitted the accused to leave the CID office, and waited more than two hours before attempting to re-interview him.
- United States v. Doucet
, 43 M.J. 656 (N-M. Ct. Crim. App. 1995). Under the circumstances of the case, appellant’s request to go home and refusal to sign a prepared written statement constituted an invocation of his right to remain silent, even though he had made prior oral admissions and had agreed to work on a written statement.
- United States v. Rittenhouse
, 62 M.J. 509 (A. Ct. Crim. App. 2005). Once a suspect waives the right to silence, interrogators may continue questioning unless and until the suspect unequivocally invokes the right to silence. If a suspect makes an ambiguous or equivocal invocation of his right to remain silent, law enforcement agents have no duty to clarify the suspect’s intent and may continue with questioning.
See also Davis v. United States
, 512 U.S. 452 (1994).