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What Happens After The Defendant Asserts His Right To Counsel?

by Christopher G. Aiello

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If, after invoking their right to silence, the suspect initiates further conversation with the police, the resumption of police questioning will not constitute a failure to “scrupulously honor” the right to remain silent. State v. Fuller, 118 N.J.  at 83; State v. Mallon, 288 N.J. Super. at 147. Suppose there is any uncertainty or ambiguity about whether a suspect has asserted their right to remain silent. In that case, the police must cease asking questions about the crime, State v. Dixon, 125 N.J. 223, 240-241 (1991), but may question the suspect to clarify whether the suspect intends to assert their right to remain silent. State v. Harvey, 151 N.J. 117, 221 (1997); State v. Johnson, 120 N.J. at 283. See also State v. Harvey, 121 N.J. at 418-19. “Only if the suspect then makes clear that he is not invoking his Miranda rights should substantive questioning be resumed.” State v. Wright, 97 N.J. 113, 120 n. 4 (1984) (quoting U.S. v. Rigg,537 F.2d 1219 (4th Cir. 1976)); see also State v. Bohuk, 269 N.J. Super. 593.

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About the Author

Christopher G. Aiello

Christopher G. Aiello is a partner at Aiello, Harris, Abate Law Group PC.

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