The Out-of-Custody Suspect’s Miranda Invocation: Going Out on a Limb

The Out-of-Custody Suspect’s Miranda Invocation: Going Out on a Limb

By Robert C. Phillips
DDA (Ret.)
January, 2015

            It is now generally accepted that a so-called “anticipatory invocation” is legally ineffective.  What this means is that if a criminal suspect who is being questioned in a non-custodial setting attempts to invoke his rights under Miranda,[1] or, in a slightly different scenario, whenever an in-custody suspect attempts to invoke his rights prior to any interrogation taking place, neither invocation is any good. 

            Whichever of the two types of anticipatory invocations occurs, the legal concept itself stems from the same source.  The United States Supreme Court, in nothing more than a footnote in McNeil v. Wisconsin,[2] clearly states; “We have in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than ‘custodial interrogation’ . . . .  Most rights must be asserted when the government seeks to take the action they protect against.”[3] (Italics added.)

            It is evident from this that before Miranda applies, the suspect must be both (1) in custody and (2) an interrogation, if not in progress, must at least be imminent.[4]  If either one of these two preconditions is not met, then any attempt by a criminal suspect to invoke his or her right to the assistance of counsel or to remain silent pursuant to Miranda is legally ineffective.

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