“You have the right to remain silent. Anything you say can and will be used against you in a court of law… “
Whether from watching TV shows, reading books, or even personal experiences, most people have heard at least a portion of the Miranda rights. If you are ever questioned by police, your awareness of the rights we refer to as “Miranda rights” is critical. You do not have to be “given” or told your Miranda rights to be protected by them. You can invoke these constitutional rights without being advised of them.
With that in mind, it is important to know what Miranda rights are, when they apply, and how and when to invoke them.
What are Miranda Rights?
No person has to be read Miranda rights by the police. Failure of the police to do so does not mean that any criminal charges placed against you must be dismissed. I hear this often from clients before I get a chance to explain to them what I outline here.
The issue basically comes down to the admissibility at trial of anything you say that incriminates you.
Your Status at the Time the Police Contact or Confront You
This is the first consideration. A simple illustration helps: if the police walk up to you on the street and tell you that you are free to leave, and you believe you are free to leave, what if the police then ask you an incriminating question such as, “Did you rob that bank over there?”
If you respond, “Yes,” that admission can be introduced against you at your trial for bank robbery even though the police did not “give” you Miranda warnings.
That is because when they asked you that question, you were not “under arrest.”
You see, at trial, when the prosecution seeks to admit into evidence your statement, “Yes,” they must prove that the statement was voluntarily given. No statement or confession that is not voluntarily given is admissible.
There on the street, free to leave, your “Yes” answer is deemed voluntary and thus, constitutionally compliant and admissible against you.
However, if the police approach, handcuff you, and take you to the station, then you are “under arrest.” If you are under arrest and the police ask you if you robbed a bank and you answer, “Yes,” this admission takes a different character when you are on trial and the prosecution seeks to admit this confession in evidence against you.
Statements made by persons in custody that are the product of a question designed to elicit an incriminating response are hardly presumed to be voluntary. Before a prosecutor can have those statements admitted into evidence, he or she must establish that the statements were voluntary.
The way a prosecutor does this is to lay a foundation that the statements are voluntary. This is done by presenting testimony to the court, outside the presence of the jury, that prior to asking you the question that produced an incrimination response, Miranda requirements were addressed.
This prosecution witness must testify that he or she “gave” you your Miranda rights, that you understood those rights and that you waived those rights. This creates a prima facie case that your incriminating statements were voluntary and thus, admissible.
But a showing of compliance with Miranda is not the end of the story of admissibility. A defendant always has the right through cross-examination of the Miranda witness or through presentation of testimony or other evidence, that despite compliance with Miranda, the statements were not voluntary.
If the defense can establish, e.g., that, even after Miranda, and waiver, you were interrogated for an unreasonable length of time, or deprived of food or water, or threatened or harmed, a court would consider such evidence relevant to a determination of voluntariness. A court might very well conclude that even with establishment of Miranda compliance, such other factors rendered the incrimination statements involuntary and inadmissible
Therefore, when police take someone into custody, and embark on interrogation of that person, they do not have to provide that person Miranda rights-but they would be wise to do so-if that person confesses and they intend to use that confession at trial.
While the actual wording may vary from state to state, an officer who reads someone their Miranda rights will say something along the lines of: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney and to have him/her present with you while you are being questioned. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”
The Miranda rights arose as a result of the 1966 United States Supreme Court decision , Miranda v. Arizona. During police questioning, suspect Ernesto Miranda confessed during interrogation as a result of police intimidation. Miranda warnings were created to guard against involuntary confessions which the U.S. Constitution prohibits under the Fifth Amendment.
Breaking Down the Miranda Rights
There are two main parts to the Miranda rights:
- You have a right to remain silent.
- You have a right to an attorney.
Let’s look at them further.
You have the right to remain silent.
“You have the right to remain silent. Anything you say can and will be used against you in a court of law.”
This is designed to help you avoid making statements that could incriminate you; in other words, saying something to the police that implies you are guilty or are somehow involved in a crime. For example, if you are being charged with DUI and after being arrested a police officer asks if you have had anything to drink. If you respond that you had three drinks, you have just made a self-incriminating statement that could result in a DUI conviction.
A portion of the Miranda warning also informs you that the things you say while being questioned by police can be used as evidence against you in court.
You have the right to an attorney.
The Miranda rights also inform you that you have the right to have an attorney present, which means you can ask for an attorney at any point and the questioning must stop until your attorney arrives. A person’s right to have an attorney with them during questioning is part of the Sixth Amendment of the Constitution, and if you are not able to afford one, you can still have one appointed to you at no cost. It is important to note that this is a right, not a requirement. You do not have to exercise that right.
When should you be read your rights?
The police are not required to read you your rights in every circumstance. Police must recite the Miranda warning before custodial interrogation. To qualify as custodial interrogation, you must be:
- In police custody, or under arrest, AND
- Being interrogated by police about a crime, and the questions may implicate you.
However, there are exceptions, and police may question you without reading you your rights in certain situations. We will discuss those exceptions next.
Public safety is at stake
If an officer believes public safety is at stake, he or she may question the suspect without reading his or her rights. This usually occurs in the case of violent crimes or when weapons or injured people are involved. For example, an officer arrives on a call where someone was stabbed. Witnesses say a man stabbed his roommate and got rid of the knife. The officer then handcuffs the suspect and asks him where the knife is without first reading him his rights. This exception applies in this situation since that knife could be used in another crime if not found in a speedy manner.
Physical evidence exists
If a suspect is arrested and the officer does not read his or her Miranda rights, parts of a statement the suspect makes that leads to evidence will likely be allowed in court. For example, police are questioning a suspect about his involvement in a car theft but they have not read him his rights yet. The suspect says the stolen car is parked in a lot behind his house, and the confession leads to physical evidence found in the car. This evidence can likely still be admissible in court even though the man’s Miranda rights were not read to him.
Standard questioning
Asking for identification or asking standard booking questions does not require the Miranda Warning.
Waiving Your Miranda Rights
Knowing what actions could waive your right to remain silent and your right to an attorney is important because each is possible and can be achieved in different ways. If you ever find yourself being charged with a crime and interrogated by police, you need to know what actions waive your important Miranda rights.
You have the right to remain silent.
You waive your right to remain silent when you start talking. As soon as you open your mouth and start to answer questions being asked by a police officer, you have waived your right to remain silent. This may seem like a no-brainer, but it is very important to know.
You have the right to an attorney.
You waive your right to an attorney by not asking for one. If you are being questioned by a police officer and either remain silent or participate by answering questions, and at no point in time ask for an attorney, you have waived your right to an attorney.
How to Use and Invoke Your Miranda Rights
The right to remain silent and the right to an attorney are not automatically granted to you. You must clearly state that you are invoking your rights, because if you do not the police can continue to question you.
So how do you invoke your rights? Well, it depends on which right you are wanting to use.
You have the right to remain silent.
If you want to exercise your right to remain silent saying things like, “I refuse to speak to you,” “I’m not going to talk to you,” “I want an attorney,” and “I claim my Miranda right to not talk” would all work.
You can invoke your right to remain silent at any point, even if you have already started answering questions. However, keep in mind that invoking your right to remain silent in the middle of questioning does not mean that the things you have already said are not admissible.
You have the right to an attorney.
If you want to exercise your right to an attorney, things are a little different. You must very clearly ask for an attorney. Examples of this would be, “I want an attorney,” “I’m not talking without my lawyer,” or “I want to use my right to an attorney.” It is very important to know that this right must be clear. If you say, “I think I want a lawyer” it may not be good enough.
You can invoke your right to an attorney at any point, too. If you have already started to answer questions, you can change your mind and request the presence of a lawyer while you do so. If you do this, the police officer must stop the questioning until an attorney is present.
What happens if your rights are not read to you?
Some people mistakenly believe that they are completely off the hook if the police do not read them their Miranda rights. This is unfortunately not true.
The Miranda warning applies to statements you make, not charges against you. If you make incriminating statements without hearing your rights, the statement may not be admissible, but the charges will not be thrown out.
The only time that your charge may be dismissed as a result of a Miranda warning violation is if the only evidence the police have against you is your incriminating statement. If that evidence is then thrown out, the prosecutor can decide to not go forward with the case.
Do you have a question about Miranda rights?
The Miranda warning is important to understand, but it can also be confusing. Asking for an attorney is the best thing you can do if you find yourself being arrested or questioned. Our criminal defense attorneys can help you during questioning or before questioning. If you think your rights have been violated we can help with that, too. We have extensive experience working with people just like you and will fight to ensure the best outcome possible.
Contact us online today, or call 843-853-3310 now to speak to one of our experienced attorneys; find out how we can help.
