I had two clients call me recently about why they were not provided their “Miranda” rights prior to the police asking them questions. If you are not under “arrest,” the rights are not triggered. Both clients made admissions to the alleged crimes and the analysis then proceeds to whether they were under arrest and should have been advised of their constitutional rights.

The landmark case of Miranda v. Arizona continues to evoke confusion by many individuals confronted by the police.  Ernesto Miranda, a rape suspect, was arrested and taken to the police station.  After two hours of questioning, he signed a written confession and was subsequently found guilty.  Miranda appealed his conviction on the grounds that prior to confessing, he had not been informed of his Fifth Amendment right against self-incrimination or his Sixth Amendment right to counsel.

The United States Supreme Court overturned Mr. Miranda’s conviction finding that the coercive nature of detention in a police situation necessitates certain safeguards in order to ensure that suspects that do not intelligently waive their rights.  The ruling held that when law enforcement officers take a suspect into custody with the intention of conducting an interrogation, they must advise the suspect of certain fundamental rights.

  1. The right to remain silent;
  2. Anything you say will be used against you in court;
  3. The right to have an attorney present;
  4. If you cannot afford an attorney, one will be provided at no cost to you.

This case had broad ramifications for all police officers and required them to issue these warnings when a person is placed under arrest and will be interrogated.  Note also that the officers are required to make sure you understand either each right specifically or in its entirety.  In practice, many officers will state, “do you understand” after each right or at the end of the warning—either way has been held to be proper.

We are all aware of the contents of Miranda.  It is recited on police shows everyday and many can repeat it verbatim, though often without a clear understanding of its significance.  More importantly, as I have seen in my criminal cases, simply ignored, misunderstood or feared. Simply stated, many either turn a “blind eye” or disregard the best course of action for any arrestee:  say nothing or seek the help of an attorney.

Keep in mind that the environment that Miranda must be invoked requires custody (arrest) and interrogation (questioning) by law enforcement officers.  Hence, if they are not cops, Miranda does not apply.  Moreover, statements “volunteered” by the suspect at any time; “spontaneous” statements, or providing basic personal information such as name, address, and social security does not require the advisement.  I placed quotes on the words volunteer and spontaneous.  As a criminal defense attorney, these types of statements are subject to analysis and should be carefully scrutinized if they are truly voluntarily or spontaneously given.

Brief analysis of each right:

  1. The right to remain silent: KEEP YOUR MOUTH SHUT.  It is not called a warning for nothing.  You may safely state some basic personal identification.
  2. Anything you say will be used against you: YOU CAN COUNT ON IT.
  3. The right to have an attorney: To many this may appear to allow you to request for an attorney at any time during interrogation.  NO, ONLY BEFORE THE INTERROGATION.  Many also believe that “I do not need an attorney.  I did not do anything wrong.”  This belief is disastrous—the police work for the prosecution.  If you are a suspect or on your way to becoming one, the police are not on your side.
  4. If you cannot afford an attorney, one will be provided at no charge. It is always amazing to me that we usually take up offers that are free.  THIS IS FREE.  Do not be afraid to use it.

Police are trained in interviewing and interrogating suspects.  They are required to study interview techniques, interviewing psychology, body language, tone of voice, phrases to be aware of, discrepancies and changes in answers.  Believe me, these observations are all memorialized in the police report.  It is a common practice for me to advise my clients charged with a crime that the police report does not put them in the best “light.”  They are very skilled in obtaining statements that can incriminate the accused but which the person believed absolved them of all guilt.

Miranda waivers must be unequivocal.  It must be a clear invocation—answers such as “Maybe I should talk to a lawyer” have been analyzed in court.  This was examined in Davis v. United States. Agents of the Naval Investigative Services interrogated the defendant in connection with a beating death of a sailor.  Initially, the defendant waived his rights but 90 minutes into the interview, he states, “Maybe I should talk to a lawyer.”  The agents asked clarifying questions and the defendant replied, “No, I don’t want a lawyer,” the interrogation continued with resulted in incriminating statements. The court rejected the defendant’s argument that any mention of a lawyer, however ambiguous is insufficient to invoke the right to counsel and that questioning must cease. The lesson here is that make your requests clear and simple—no wavering is allowed.

The Miranda warnings are short and simple.  They are not complicated. A statement of “I want to remain silent and I want an attorney” will suffice. I cannot emphasize enough that many defendants “bury” themselves with their own statements.  The protection afforded by Miranda should not be ignored but taken advantage of and invoked.

A client is facing a crime that is considered in California a “strike.” She asserts that she was handcuffed when she admitted that she used a weapon against the complaining witness. Challenging whether she should have been advised of her rights (especially since she was handcuffed) will be central to her defense. If we succeed, her admissions will be stricken.

Any questions, give me a call at 310-601-1744 or email me at [email protected]

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CategoryLegal Advice