But they didn’t read me my rights!

If there’s one aspect of criminal procedure that most Americans are familiar with, it’s the following famous phrase:

“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 speak to an attorney. If you cannot afford an attorney, one will be appointed to you. Do you understand these rights as they have been read to you?”

But what happens when a defendant is never read his or her rights?

In Miranda v. Arizona, the Supreme Court of the United States case held that police must give a Miranda warning (above) to criminal suspects prior to custodial interrogation, as a way of ensuring that the person is aware of his or her Constitutional rights (specifically, the Fifth Amendment right against self-incrimination, and the Sixth Amendment right to have an attorney present during questioning). If the police elicit an incriminating statement from a suspect without reading the “Miranda warning” or “Miranda rights,” then the statement will not be admissible. If the suspect receives the Miranda warnings, and makes a knowing, intelligent, and voluntary waiver of his or her rights, then any self-incriminating statement made is admissible.

Notice two things:

  1. The Miranda warning is only required prior to “custodial interrogation.” This means that you must be a) in police custody, and b) be subject to police interrogation. Therefore, no Miranda warning is required when you speak with the police at your house (no police custody). Also, just because you are at the police station doesn’t mean that you are necessarily in police custody – the test is whether a reasonable person would have felt free to leave. (If not, you are likely in custody). Therefore, if the police call you and ask you to come down to the station ‘just to talk,’ and you voluntarily go to the station and make self-incriminating statements, then Miranda is not required. What about if you didn’t feel free to leave the police station, but you affirmatively made a statement while waiting for your lawyer to arrive during a time when the police had halted questioning? Imagine that you blurted out a self-incriminating statement on your own – that statement can be used against you, because you weren’t being subjected to interrogation. A suspect can waive his own prior invocation of rights merely by speaking about the case.
  2. The only remedy to custodial interrogation without Miranda is that the police lose the ability to use any self-incriminating statements. The police don’t have to drop the charges against you, they don’t have to immediately let you go, and they aren’t subject to civil liability merely for failing to Mirandize you.

It’s actually common for police not to give the Miranda warning. Imagine that the police are called out to investigate a possible aggravated burglary claim. They arrive on the scene to find a suspect walking out of another person’s house (without the owner’s permission), with a bag full of items from inside the house. The suspect is caught red-handed and immediately arrested. In that situation, the police likely have all of the evidence that they need. They will not take that suspect back to the station and try to elicit an admission from him (“custodial interrogation”) because they have first-hand knowledge of his offense.

So to answer the question above, if a person was subjected to custodial interrogation without a Miranda warning (or he or she invoked the right to remain silent, and the questioning wasn’t halted), then any self-incriminating statements made would be inadmissible. However, you can see from the above analysis that Miranda is not required in many situations. Miranda protection is not as broad as imagined.

Recent Cases

And while we’re on the subject, three recent U.S. Supreme Court decisions have reduced Miranda protection further. The Court recently decided in Berghuis v. Thompkins that a suspect must “unambiguously” invoke the right to remain silent by telling police that he or she wishes to do so.

If you sat silently and did not express to the police that you understood your rights, and during continued interrogation answered a question to the police, then the statement is admissible. You have not waived your rights because you haven’t explicitly said, “I wish to remain silent.” therefore no Miranda is required. (This is similar to the requirement of a suspect to tell police that he or she wants a lawyer, as held in Davis v. United States.)

The Court also held in Maryland v. Shatzer that a suspect who invoked his right to remain silent must do so again after a two-week period. This amount of time is to allow for a person to be re-acclimated to normal life and free from the pressures of custodial interrogation. The rule is not “once invoked, always invoked.”

The Court also held in Florida v. Powell that while Miranda requires a suspect to “be warned prior to any questioning” and that “he has the right to the presence of an attorney” police must only “reasonably” convey this warning. (In the facts of this case, the police did not explicitly indicate that the suspect had a right to have an attorney present). The Court felt that the warning was sufficient and upheld the defendant’s conviction.

Based on these recent cases, a suspect may find the best reaction to custodial interrogation is to say “I wish to remain silent, and I want a lawyer,” and then not say a word further. If subject to custodial interrogation at any later time, the suspect should repeat the above statement prior to each custodial interrogation.

Why should I care about Miranda?

Miranda is a touchy subject for many Americans. Some people believe that Miranda no longer provides enough protection. Others believe that it should not exist at all. Advocates in favor of extending (or preserving) Miranda protection likely do so because they believe that custodial interrogations are intended to be intimidating and stressful, and can lead to false or coerced statements. While some only see it as a “technicality” to allow a suspect to avoid taking responsibility for a crime, others see Miranda as a tool for preventing false confessions. In many cases, an admission is the stronget piece of evidence, and may override physical evidence to the contrary. Remember that the person subject to custodial interrogation is only a suspect at that point. Regardless, it is worth knowing how courts currently apply Miranda. Even if you never plan to be subjected to custodial interrogation (and who does?), it will still make watching crime dramas on television more interesting.

Note: This is not an exhaustive review of all cases regarding Miranda, and should not be taken as such. These are general principles, but you should speak with an attorney about the specific facts of your case.

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