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 ....