Miranda Rights

The concept of being read Miranda rights is one that is familiar to most people who have watched shows like Cops or Law & Order. An officer will say something along the lines of:

  1. You have the right to remain silent.
  2. Anything you say can and will be used against you in a court of law.
  3. You have the right to an attorney.
  4. If you cannot afford an attorney, one will be appointed for you.

The basis for these rights and the above quoted “Miranda warning” comes from the landmark United States Supreme Court case of Miranda v. Arizona. The Court found that informing a subject of the rights adequately safeguarded the individual’s right not to be compelled to incriminate himself under the Fifth Amendment of the United States Constitution.

When do police need to read me my rights?

You always have these rights and it’s important to be aware of them. However, the police are not required to read these rights at every encounter, or even before every arrest. If the officer doesn’t read these rights, it does not necessarily make the whole case go away. An officer must provide the Miranda warning when an individual is being interrogated while in custody.


Miranda warnings must be provided if a suspect is being subjected to interrogation. Interrogation includes express questioning. Interrogation can also be words or actions from the police that the police should know are reasonably likely to elicit an incriminating response.

In Custody

In order to be “in custody,” an individual’s freedom must be deprived in a significant way. Being placed in handcuffs and locked in the back of a police car is an example of being “in custody.”

On the outset, it appears simple to determine whether someone has been interrogated while in custody; but there have been many cases throughout the years where these two concepts are analyzed. The proper legal issues to raise really depend on the specific facts of each case. It is important to consult an attorney to address any potential legal issue that may have been presented in your particular case.

What if police fail to advise me of my rights?

If a police officer interrogates a suspect who is in custody without first giving the Miranda warning, then any statement or confession that was made as a result of the questioning cannot be used against the suspect in the criminal case.

A criminal case isn’t going to get dismissed for the mere fact that the police didn’t read the Miranda warning. However, the legal “remedy” that keeps the statement or confession from being used against the defendant trial could eliminate the basis for the prosecutor’s case. If the prosecutor doesn’t have evidence other than the confession that he or she can use, that means the prosecutor would have to dismiss the case.

For example, imagine you are handcuffed and taken to an interview room at the police station. The police inform you that you are under arrest, but they don’t read you your Miranda rights. When officers ask if you are involved in a bank robbery, you crack under pressure and give a full confession. If the prosecutor doesn’t have any evidence other than the confession, the case will be dismissed.

What happens after I’m read my rights?

It is possible to waive Miranda rights and allow police to conduct and interrogation. A waiver of Miranda rights must be made:

  • Voluntarily
  • Knowingly
  • Intelligently

For the waiver to be voluntary, it must be made as a free and deliberate choice and not due to intimidation, coercion, or deception. For the waiver to be knowing and intelligent, it must be made with an awareness of the rights that are being waived and the consequences of that decision. It doesn’t matter whether the decision to waive is a wise choice.

Courts will assess the waiver and the circumstances surrounding the interrogation. Important factors include a suspect’s age, experience, education, background, and intelligence. The prosecution has the burden of establishing that more likely than not the waiver was valid.

It is more prudent to exercise your rights than to waive them. If you wish to remain silent, your silence cannot be used against you at trial. Ironically, if you wish to invoke your right to remain silent, you can’t just remain silent. You must tell the police that you wish to exercise your right to remain silent.

The best thing to do if you are being questioned would be to promptly and clearly assert your right to an attorney. If you find yourself in need of effective legal representation, call Blanchard Law to speak with an attorney who can assist you.

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