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SE Manl-ID: LHBSAP1 LEGAL HANDBOOK FOR SPECIAL AGENTS PART 1 nO ——— — and freely decided to answer questions. A suspect who remains silent after receiving warnings has not agreed to be questioned. **EFEDte: 10/25/1993 MCRT#: 159 Div: D9 Cav: SecCls: 7-4.1 Policy (See 7-3.3.) (1) Use of Form FD-395 — Inasmuch as the government will have to meet a "heavy burden" in establishing that an accused knowingly and intelligently waived his/her rights, it is desirable that the subject's acknowledgment of the warnings and his/her waiver be obtained in writing. The FD-395 should be used for this purpose. Completion of this form by the suspect provides documentary proof of both the warning and waiver of rights; consequently, the words of the full warning and waiver should not be repeated in the FD-302 reporting the results of the interview. State only the fact that the accused was warned of his/her rights and that he/she waived them, "as shown on an executed warning and waiver form"; this notation should appear immediately before the report's recitation of what the accused said in his/her statement. (See (7).) (2) Refusal to Sign FD-395 - If the accused is willing to waive his/her rights but will not sign Form FD-395, use the blank space on the form to record the language in which he/she indicated his/her willingness to waive (precise quotation if possible) and then execute the form in all respects other than his/her signature. (See also Appendix, 4-1, of this manual.) (See (7).) (3) Refusal to Waive - If the accused refuses to waive, or initially waives but at any time thereafter reconsiders and invokes his/her right to remain silent and/or counsel, the interview must be immediately terminated. The words and the fact of refusal should be recorded in the blank space on the FD-395, and the form then executed in all other respects. (See (7).) (4) Recontact After Accused Invokes Right to Silence - If an accused invokes his/her right to remain silent, Agents should not attempt a second interview until a significant period of time has elapsed (a two-hour period has been held significant), or the accused requests to be interviewed anew. In either case, Agents should ensure that the accused is provided a "fresh set" of Miranda warnings and waiver before further questioning begins. If the accused again asserts his/her right to remain silent, the right must be honored by immediately terminating the interview. (See (6) and (7).) (5) Invocation of Right to Counsel - If an accused invokes his/her right to counsel, as long as the accused remains in continuous custody, Agents should not attempt a subsequent interview unless the accused "initiates" it, or unless the accused's counsel is present. In those cases where an accused who has invoked his/her right to counsel initiates a second interview, Agents must ensure that Ss Printed: 05/05/2004 13:08:54 Page 6