Reinitiating talk with police trumps Miranda protection in Virginia, says Fairfax criminal lawyer

Reinitiating talk with police after law enforcement officers (LEO) stop interrogation will deprive you in Virginia of your Miranda v. Arizona, 384 U.S. 436, 444 (1966) and Fifth Amendment Constitutional protections against your subsequent words being used against you at trial, absent any other grounds for excluding your testimony. As an example, as a Fairfax criminal lawyer, I know that if police arrest you and Mirandize you, you then assert your right to have a lawyer present during interrogation, the police keep asking you questions but then cease questioning you, and you later resume talking with police, the police do not need to inquire any further about whether you really wish to resume talking without the presence of a lawyer. Virginia v. Fayne, ___ Va. ___ (April 23, 2026). Fayne is a unanimous Virginia Supreme Court opinion that overturns the Virginia Court of Appeals. Fayne is likely to be the key case on this topic for a long time.

Do my Mirandized answers to police questions between asserting my right to a lawyer or to remain silent and reinitiating talking with LEO get excluded from trial?

At least Fayne confirms that you get exclusion at trial of your answers to police questioning between asserting your right to a lawyer after being Mirandized and reinitiating police communication. I will be ready to argue that the same must apply when asserting one’s Fifth Amendment right to remain silent with police, and when — before Miranda rights have to be read— a suspect asserts his or her Fifth Amendment Constitutional right to remain silent or Sixth Amendment right to an attorney, because those rights apply before Miranda rights are required.

Will Fayne embolden police to keep questioning me even after I assert my Miranda rights?

Fayne may or may not embolden police to keep questioning Virginia criminal defendants after they assert their Miranda right to remain silent or to have an attorney present during police questioning. However, by doing so, police need to realize that a Virginia criminal defendant can get excluded from trial all police questioning (and the suspect’s responses) between the point of asserting their Miranda rights and reinitiating communication with police after police stop questioning. In Fayne, a good cop/ bad cop scenario was at work where the LEO playing the role of bad cop asserted that he could not help Fayne if Fayne would not talk. (Do not fall for that ruse, whereby the “help” may turn out to be nothing more than the police officer’s telling the prosecutor that the defendant spilled the beans.) It would be preferable if the Virginia Supreme Court would require police to obtain a clear and unequivocal waiver of Miranda  rights after that discussion reinitiation, but that is not what Fayne says.

Do my rights to remain silent and to a lawyer apply even before LEO must Mirandize me?

“Yes” is the answer to the foregoing question. As a Fairfax criminal lawyer, I have heard several prosecutors during my suppression arguments incorrectly assert that one’s Fifth amendment right to remain silent only applies once Miranda rights have to be administered. Nothing could be farther from the truth. Miranda simply recognizes that the coercive nature of a custodial interrogation (versus non-custodial interrogation) requires police to tell a suspect of their right to remain silent and to have a lawyer present during police questioning. Know your rights to remain silent with the police and to avoid reinitiating communication with LEO.

Fairfax criminal lawyer Jonathan Katz is experienced in successfully defending hundreds of defendants against Virginia felony, misdemeanor and DUI prosecutions. Do not go to court alone when facing a criminal charge. A start to a great defense is for you to meet with Jon Katz for a free initial in-person strictly confidential consultation about your court-pending Virginia prosecution. To secure your meeting with Jon, call us at 703-383-1100, Info@KatzJustice.com, and (text) 571-406-7268.