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What Is a Waiver of Rights?

A suspect might waive his rights to have a lawyer present during questioning.
Individuals who waive their rights can no longer have witnesses testify for them in court.
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  • Written By: Karize Uy
  • Edited By: Lauren Fritsky
  • Last Modified Date: 12 August 2014
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A waiver of rights is an individual’s act of giving up or relinquishing a certain legal right. The individual must be aware of his intention to waive his rights and should willingly do so and not be coerced. He should express this intention in action or in writing. Other legal terms for a waiver are releases, hold harmless and exculpatory clauses.

A person should first be seen as “reasonable” by the court before surrendering his rights. He should possess his sanity and should be of legal age. Rights that can be waivered are those given constitutionally, statutorily, or contractually. Sometimes, employees automatically waive their rights when they sign certain contracts before being hired. Some rights may include the right to legal action, right to certain confidentiality, and even the freedom of speech, to a certain degree.

The requirement that a person must willingly waive his rights is determined by legal fiction, in which a person is assumed to know the rights he is waiving. One common instance of this assumption is during the arresting of a person. In the US, the Constitution stipulates that law enforcers inform the arrested person of his Miranda rights, or the “right to remain silent and to have competent and independent counsel” or a lawyer during questioning. If the person suddenly speaks out, whether it is unintentional and spontaneous, he loses his Miranda rights and his action can be interpreted as a waiver of rights.

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In court proceedings, an act of waiving your rights can be in the form of pleading guilty. A suspect who pleads guilty to a crime even if he is not the real perpetrator relinquishes his right to a fair trial witnessed by a jury. He also relinquishes his right to have witnesses testify for or against him, as well as the right to testify himself. In some cases, the suspect also gives up his right to appeal. Such cases require the person to sign and write a waiver of rights as evidence of his intention.

More than usual, a waiver of rights can lead to problems and injustice. Sometimes, waiving rights on one occasion can be interpreted as a waiver of rights for succeeding occasions. Other times, a waiver of rights and interests does not just mean giving up a right, but also a refusal to acquire a certain right. If, for example, a person does not contest a mistaken inclusion or exclusion of his name in a legal document, then he has declined the right to be questioned by the court.

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Discuss this Article

irontoenail
Post 3

I know in some cases the police don't have to read you the Miranda rights right away, like for example if they have reason to believe that you've got dangerous accomplices or information that could be time sensitive or something like that.

I'm not sure how far that goes, and whether or not you still have the right to remain silent before they read it to you. From what I can tell it's a tough line for them as well, since, if they seem to have coerced answers out of a suspect, they can lose the ability to use those answers in a case against the suspect.

indigomoth
Post 2

@KoiwiGal - Well, there are Good Samaritan laws in places so that people can't get sued for that kind of act, even if it goes wrong.

I think even if they managed to get someone to sign a waiver, it might not count considering how many people do end up suing hospitals and things all the time.

It always seems like all you need is a good lawyer and you can redefine whatever law you need to redefine, whether that's a waiver agreement or whatever.

KoiwiGal
Post 1

I was talking with my friends the other day about how difficult it can be to offer people help when you're a medical professional these days, because if you get it wrong they can conceivably sue you. So if, say, you see someone get hurt in a car accident it's actually in your best interests to keep walking without stopping to help.

This is particularly true of when people need to perform CPR because to perform it correctly often breaks ribs and so people might sue over that.

My solution was for doctors and nurses to carry around liability waiver forms so if they get into that kind of situation they can just get the victims to sign them.

Of course, that's only going to help if they aren't unconscious or something. I guess the better solution would be for people to not be terrible.

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