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Don't accidentally waive your Miranda rights

Perhaps the two most important parts of the typical Miranda warning police must inform a suspect of while arresting him or her are the right to remain silent, and the right to an attorney. These are distinct Constitutional rights, but are related, in the sense that they are intended to protect suspects from being tricked, intimidated or forced into a false confession.

However, though the right against self-incrimination is innate in every American, the system does not assume that you have invoked every time you are under police interrogation. Indeed, after you have been informed of your Miranda rights, you must clearly invoke your rights to remain silent in order to enjoy its protection.

Even just keeping your mouth shut may not be considered an unequivocal invocation of your right. Police will likely believe, with reason, that they may continue to question you until you speak up. And those statements will probably be permissible evidence against you in court.

To invoke your Fifth Amendment right, you must clearly invoke it, perhaps by saying you will not answer questions. Similarly, you will not be provided an attorney until you clearly ask for one.

Whether or not a criminal suspect waived his or her Miranda rights can be a source of dispute between the prosecution and defense. Just because prosecutors claim a piece of evidence is legally valid does not make it so. It may be necessary for the defense attorney to dispute evidence, either on procedural or Constitutional grounds, and hopefully get it thrown out of court.

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