Waiver

Subjective knowledge

As explained in the Introduction, a waiver of an individual's right to silence must be "knowing," "intentional" and "voluntary." If the individual was unaware of certain facts when waiving his rights, however, the issue arises of whether the waiver could possibly be "knowing," "intentional" and "voluntary." It is critical to remember, therefore, that even if an individual would have acted differently if he knew all the facts, look to that individual's subjective knowledge.

For example, in Godinez v. Moran, 509 U.S. 389 (1993), after a suspect was arrested, his sister called the public defender's office to retain counsel on the suspect's behalf. When the public defender called the police, he was told that the suspect would not be interrogated the following day. Although the suspect was unaware of this conversation, and was unaware that an attorney had been retained on his behalf, the officers nevertheless interrogated the suspect that night. Prior to those interrogations, the suspect waived his Miranda rights and his rights to an attorney, and confessed to a murder.

The United States Supreme Court held that the confession was valid, regardless of the public defender's attempts to provide the suspect with legal counsel, because the suspect's lack of knowledge was not critical to his ability to knowingly waive his Miranda rights. The court would only look to his subjective knowledge, and here the waiver knowledge.

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