What are my Miranda rights, and when do they have to be read?

Quite simply, Miranda rights are rights the officer must inform you of before asking questions, if you are in custody. While this definition seems easy enough, when Miranda must be read has always been the source of fierce litigation in cases. Of course, law enforcement would prefer Miranda never be required, while defense attorneys and most people who have been arrested scream "no Miranda rights were read!"

Miranda rights stem from the 1966 arrest and conviction of Ernesto Miranda for kidnapping, rape, and armed robbery. During a two-hour grilling by police, Miranda "confessed" to the crime, and was subsequently "identified" by the victim. While the statement Miranda wrote confessing was written on forms containing some warnings, they did not include the right to remain silent and to have a lawyer present during any questioning. Miranda was convicted in an Arizona court, and his appeals eventually ended up in front of the United States Supreme Court. In a 5-4 decision authored by Chief Justice Earl Warren, the Supreme Court sided with Miranda and made it clear that a person in custody must clearly be informed of their right to remain silent and to have an attorney present. Further, even if the person is indigent, they must be afforded an attorney at no cost to them.

So, where does that leave us in 2016 with Miranda rights? Well, perhaps the most effective way to present the topic is through some real-world Q&A.

I was arrested for DUI and never read my rights. Are Miranda rights required during a DUI?

It depends. 95% of all DUI arrests do not involve Miranda rights being read though. The reason is that in most DUI, the investigation- through questioning, observations, and field sobriety testing- is done before you are formally arrested. Remember, Miranda rights only apply to questioning done after you have been formally arrested and are being questioned. What is formal arrest? A good question without a crystal clear answer. But, courts generally ask if a reasonable person would feel they were not free to leave in determining whether a formal arrest has been made. Handcuffs, being told you are under arrest, being placed in the back of a cop car, etc. all could lead a reasonable person to believe they are under arrest, and therefore subject to Miranda.

I will say that the most common Miranda violation I see in DUI cases involves the cop prying or asking for "the real story" once they have a suspect in the back of the cop car and riding to jail. Cops will often make small talk- though clients will too- which leads to a, "OK man, so tell me how many drinks you really had, because I just aint buying the 2 story…" This is a perfect example of when Miranda warnings must be read, and whatever the answer is could be thrown out in later court proceedings.

I was asked to come into the police station to discuss a hit and run accident. Do my Miranda rights have to be read?

This gets tricky. If a cop is playing it safe, they will read you Miranda rights. However, they are often sneaky about it. For example, in the above-scenario, the cop will emphasize that they simply called and ask if you'd come have a chat. You come to the station on your own will. You drive your own car. You say, "sure!" So far, this isn't looking like a situation where someone would feel they are under arrest, is it?

Once at the station, things get a bit tricky. You are sat in a room, usually audio and video recorded, and the door sometimes closed, sometimes left cracked. A cop sits across from you and begins their result-oriented questioning. Cops are trained in the art of eliciting helpful statements (for their case) from their suspect. So, its not rare for me to watch a taped questioning where a cop seems polite enough throughout the entire encounter. However, they will usually give it the ol', "aint buying it" line, or "this can stay between me and you," or "getting this off your chest will make you feel so much better." Courts have held that ALL these lines and conversations are just fine. In fact, the tactics used don't usually directly impact whether Miranda should be read. Unless, of course, the cop exclaims, "you're going down and not leaving here today come hell or high water!!" Then, most people would reasonably believe their freedom is not merely curtailed, but that they are under arrest. (the exclamation is a bit extreme, but point is, cops will be careful to not say anything too outrageous ... usually…)

So, must Miranda be read here? Well, again, only if you are in custody. A voluntary statement, whether at the station, jail, scene, or by phone, is not automatically subject to Miranda protection. Now, most cops I see interrogating will get the suspect to give the incriminating statement first, then read Miranda, and have the person either repeat the story or pen a written statement to the same effect. This, courts have held, is perfectly OK as well, and a suspect has been informed of their rights.

If Miranda rights are not read, must I answer the cops questions? Can I be charged for simply staying quiet?

You may absolutely refuse to answer any questions by a cop at all times! While this seems easy, people either (a) have no idea they have that right, or (b) get intimidated and nervous and begin mindlessly talking. From an encounter as simple as being asked, "do you know how fast you were going?" to a situation where you're being called to discuss a very serious crime, you have the right to remain silent and not answer questions. Most professionals in our arena will tell you there are very, very few times when agreeing to speak to cops is a good idea. While those times can exist, never do so without consulting with an attorney first and hiring them to represent you throughout anything you do involving the case.

Ernesto Miranda lived a rather sad life by most people's standards. He was in and out of jail throughout his life, and was stabbed and killed in a bar fight at the young age of 35. Story goes that a stack of autographed Miranda cards were found in Ernesto's pocket when he was taken to the hospital for the fatal injuries he sustained. However, the treatment of Ernesto, and his subsequent defense, will remain in the history books as one of the most important cases in American history that solidifies one of the most important rights you have: the right to remain silent.

If you have been called by a cop, or have been arrested and want an evaluation of how we would fight your case, including any statements you may have made to law enforcement, call us today to begin your defense.

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