Editing Miranda warning (section)

==Assertion==
If the defendant asserts his right to remain silent, all interrogation must immediately stop and the police may not resume the interrogation unless they have "scrupulously honored" the defendant's assertion and subsequently obtained a valid waiver before resuming the interrogation.{{refn|group="Note"|"Once warnings have been given, the subsequent procedure is clear: if the individual indicates, in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point, he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody."<ref>''Michigan v. Moseley'', 423 U.S. 96 (1975) quoting ''Miranda v. Arizona'', 384 U. S. 436 (1966) at 384 U.S. 473–74.</ref> Note the defendant's assertion of their fifth amendment [[right to silence]] cannot be used as substantive evidence of guilt, or to impeach the defendant's testimony.<ref>''Doyle v. Ohio''</ref>}} In determining whether the police "scrupulously honored" the assertion the courts apply a totality of the circumstances test. The most important factors are the length of time between termination of the original interrogation and the commencement of the second, and issuing a new set of ''Miranda'' warnings before resumption of interrogation.

The consequences of assertion of the right to counsel are stricter.{{refn|group="Note"|A request to speak to a third person who is not an attorney does not invoke right to counsel.<ref>''Fare v. Michael C.'', 442 U.S. 707 (1979)</ref>}} The police must immediately cease all interrogation and the police cannot reinitiate interrogation unless counsel is present (merely consulting with counsel is insufficient) or the defendant of his own volition contacts the police.{{refn|group="Note"|The Supreme Court held in ''[[Maryland v. Shatzer]]'' that the protections afforded by the Edwards rule last 14 days.<ref>{{cite news |last1=Liptak |first1=Adam |title=Court Says Miranda Rights Don't Bar Requestioning |url=https://www.nytimes.com/2010/02/25/us/25scotus.html |access-date=21 October 2021 |work=[[The New York Times]] |date=25 February 2010|archiveurl=https://web.archive.org/web/20230113024851/https://www.nytimes.com/2010/02/25/us/25scotus.html|archive-date=January 13, 2023}}</ref>}} If the defendant does reinitiate contact, a valid waiver must be obtained before interrogation may resume.

In ''[[Berghuis v. Thompkins]]'' (2010), the Supreme Court declared in a 5–4 decision that criminal defendants who have been read their ''Miranda'' rights (and who have indicated they understand them and have not already waived them), must explicitly state during or before an interrogation begins that they wish to be silent and not speak to police for that protection against self-incrimination to apply. If they speak to police about the incident before invoking the ''Miranda'' right to remain silent, or afterwards at any point during the interrogation or detention, the words they speak may be used against them if they have not stated they do not want to speak to police. Those who oppose the ruling contend that the requirement that the defendant must speak to indicate his intention to remain silent further erodes the ability of the defendant to stay completely silent about the case. This opposition must be put in context with the second option offered by the majority opinion, which allowed that the defendant had the option of remaining silent, saying: "Had he wanted to remain silent, he could have said nothing in response or unambiguously invoked his Miranda rights, ending the interrogation." Thus, having been "''Mirand''ized", a suspect may avow explicitly the invocation of these rights, or, alternatively, simply remain silent. Absent the former, "anything [said] can and will be used against [the defendant] in a court of law".