Know Your Rights: Understanding the Miranda Warning

“You have the right to remain silent.” We’ve all heard this phrase so many times in movies and on television that we rarely stop to think about what it means. If you’re hearing these words spoken to you by a member of local, State, or Federal law enforcement it usually means that you are either: 1) officially under arrest or 2) officially being questioned so the police can determine if you should be charged with a crime. This is not a polite request for voluntary questioning, nor is it a “simple discussion to clear things up” with police or other officials. Make no doubt about it, being Mirandized as it is commonly called, means that the police want to question you and elicit a confession.

There are many common misconceptions about Miranda warnings. The first and most often heard is, “The police didn’t read me my rights when they arrested me!” After all, that’s what we always see in the movies and on television when police arrest someone. The truth of the matter is, the police do not have to read the Miranda warnings merely because they have arrested you. The only time they are required by law to read them is when you are in custody, and they want to question you. These two requirements are separate, but equally important.

When is someone “in custody?” The United States Supreme Court has held that someone is “in custody” for purposes of requiring that police read them Miranda warnings when that person believes that they are not “free to leave.” The belief is not based upon what the officer says, but rather upon what the person being questioned thinks at the time. For example, if the police come to your home and want to talk to you because they suspect that you have committed a crime, there is no requirement that they read Miranda warnings before questioning you. Contrast that with being at a police station, in an interrogation room with the door closed and two police officers standing over you. In which situation would you believe that you are not free to leave? Clearly, in the second example the police would be required to read Miranda warnings before questioning.

But wait, that’s not all! What if the police don’t want to question you? Do they still have to read the Miranda warnings? The answer is….. No, they do not. That’s right, they do not have to read them if they don’t need to or don’t want to question you. The only purpose of reading them is to make sure that any statement that is obtained is given freely and voluntarily. Just because someone gets arrested, that does not mean that Miranda warnings are required. So much for the movie version!

If police are going to question you, you absolutely have the right to an attorney. But did you know your right to an attorney is not simply about representation in court? You have the 100% constitutionally protected right to have an attorney present before and during any and all questioning after your arrest. Yes, you read that correctly, you are absolutely within your legal rights to postpone answering questions or discussing any issues surrounding your arrest until your attorney is present. And this is true whether you already have an attorney, or you need one to be appointed for you. Why is this so important? Because once charges have been filed, you can either become your own best witness or your own worst enemy when it comes to proving your innocence and securing your freedom. Waiving your rights can be as simple as agreeing to answer questions without an attorney or to answer questions while you wait for your attorney to arrive. Once you’ve declined the protection of your Miranda rights, your statements can be entered into evidence as part of the case against you in court.

Make no mistake about it – what you say absolutely can and will be used against you in a court of law, just as the saying goes. What it doesn’t tell you is that your statements can be taken out of context, only used in excerpts or pieces, or that entire portions of your statement may be completely ignored in presentation to courtrooms, judges, and juries. That’s why a skilled, experienced defense attorney is so critical to your defense. Your best course of action is to always refer to the very first response that we all know so well, “I want an attorney!” Until you have an attorney present, remaining silent is more than just your constitutional right – it’s a key element of your defense.

Law Offices of Barry M. Wax