Implied Waiver

  1. bestmilitarydefensedefenseattorneys9.56.59PMAlthough an express waiver is not required, courts generally will not presume a waiver from a subject’s silence or subsequent confession alone. Implied waiver scenarios are rare and limited to the facts of the case.
  2. If the right to counsel is not declined affirmatively, the “prosecution must demonstrate by a preponderance . . . that the individual waived the right to counsel.” Mil. R. Evid. 305(g)(2).
  3. North Carolina v. Butler , 441 U.S. 369 (1979). An express statement of waiver of the Miranda right to counsel is not invariably necessary. Waiver was established where accused was advised of rights, said he understood them, refused to sign waiver, but agreed to talk.18
  4. United States v. Vangelisti , 30 M.J. 234 (C.M.A. 1990). “Mil. R. Evid. 305(g)(2) does not create an exception to the requirement that an accused must intentionally relinquish his right to counsel, rather it permits proof of the waiver by evidence other than the accused’s own expression that he knows of his right to counsel, understands his right, and intentionally elects to relinquish that right.” Id. at 241 (Cox. J., concurring).
  5. Berghuis v. Thompkins , 130 S.Ct. 2250 (2010). The Supreme Court held that “a suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police.”

North Carolina v. Butler

Miranda right to counsel