The right to remain silent…

May 25, 2010

You have a right to remain silent.  If you give up this right, anything you say can and will be used against you in a court of law.  You also have a right to consult with an attorney and have an attorney present during questioning.  If you cannot afford an attorney the court can appoint one.

– Arizona v. Miranda (1966)

The instructions above are familiar in American society today.  The proliferation of shows like  “Cops” and “Law and Order” have made Miranda rights common knowledge.  However, all to frequently, individuals accused of a crime make the decision to waive their Miranda rights and make a statement during police interrogation that can later hurt them as they are prosecuted.  While people hear about being “Mirandized” few actually take the time to think about what it means and how it affects their rights.   Lets take a look at the basic concept of Miranda, and break it down so you can quickly wrap your head around it in the event you are ever read your rights.

First, keep in mind that Miranda is a constitutional rule of procedure, not a right in and of itself.  That means you have various  constitutional rights (the right to remain silent and the right to an attorney), but Miranda in itself isn’t one of those.  Instead, its a rule the US Supreme Court has created, instructing the police to inform you of your constitutional  rights before they question you.

But, its not exactly that simple.  Miranda only covers “custodial interrogation,” meaning that the police must actually have you in a position where you’re not free to leave.  This isn’t necessarily a jail cell, but if you’re just walking down the street and announce a confession within ear shot of a cop, Miranda is irrelevant.  Similarly, if the cop is asking you questions, but you are free to leave and you understand that among your options is to not answer the cop’s questions and leave at any time, again, Miranda is irrelevant.

If you’re in custody, a cop has to read you your rights before he can ask you questions.  If he doesn’t do this, anything thing you say in response to these questions can be suppressed in court.  In other words, if they don’t tell you that “anything you say can and will be used against you in a court of law,” they can’t later go and use what you said against you.  Makes sense, right?

So, what do you do if you are in custody, and you’ve been Mirandized, and now there’s cops asking questions.  Well, if you’re not 100% innocent, your best bet is probably to say you want a lawyer present then keep your mouth closed until one shows up.  If you are literally 100% innocent and have no idea why you’re in police custody, then, and only then do you maybe try to explain that.  The rest of the time, keep your mouth shut.

If you have questions about Miranda or anything related to police interrogation, give me a call at 518.477.5408, or email eric@schillinger-law.com and I can answer your questions.

The Law Office of Eric K. Schillinger

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