Miranda was waived at the beginning of a sexual assault interview that escalated into an interrogation. Arresting officer informed suspect that he was no longer free to leave and was under arrest. Officer then continued with leading questions and basically convinced suspect that he may have done something while in a blackout from alcohol and marijuana. Example: Would it be fair to assume that you had the intent to have sex? Suspect answered yes even though he did not believe that that really was his intent but could have been due to his condition at the time. Alleged victim was found naked in a room with the suspect but does not remember anything. Suspect was fully clothed, does not believe there was any sexual contact and that this is being used to make him look guilty. DNA cleared suspect but had two two seminal traces on evidence. Suspect believes he knows who they belong to. Police did not procure DNA or a statement from that person as they did not consider him a person of interest. It's evident to me through the deposition phase that this person is being protected by the Arresting Officer and the two key witnesses. Trial is scheduled for September.
Your attorney will probably want to challenge whether the initial waiver was knowing and voluntary. The validity of that initial waiver on the basis of the totality of circumstances is a pretrial issue for the court to decide. There is plenty of case law that says the accused needn't be continually reminded of his rights once they have been intelligently waived. So, while it will probably be necessary to challenge the failure to re-advise Miranda under the circumstances, the initial waiver needs to attacked likewise.
The attorney who conducted the depositions is the only person who knows enough to analyze your question.
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At any point in time during a police custodial interview, you may invoke your 5th amendment Miranda rights. That being said, for Miranda to apply the statements must be intended to be used against you in court. If you do not clearly state "I am invoking my right to Counsel" and "I am invoking my right to remain silent" there is a possibility the court may use your words against you. The DNA evidence must be addressed by an Attorney who understands the nuances of admissibility of evidence far beyond what can be speculated to based on your post. Long story short, seek Counsel to receive a thorough answer.
This answer is being given for general informational purposes only and is not protected by the attorney-client privilege since this is a public forum. The information provided does not create an attorney-client relationship. No communications with me on this forum shall be construed as arising out of an attorney-client relationship. If a client needs specific legal advice or opinions, he or she should retain counsel for advice or to undertake representation.
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