The Ins and Outs of Miranda Rights

By | March 14, 2016

As with many things in life, legal actions depend heavily on the details. Some of the most basic details in criminal cases revolve around how and when the police advise a suspect of his or her rights. Commonly referred to as Miranda rights, these warnings stem from the 1966 trial of a Mexican immigrant who confessed to charges of kidnapping and rape after a two-hour interrogation without having been told of his right to a lawyer or his right to remain silent. The Supreme Court reversed Ernesto Miranda’s conviction in a ruling that established guidelines for the way that detained suspects must be informed of their constitutional rights.

How must the rights be given?

Despite Hollywood’s general portrayal of these rights, there is no one official Miranda warning. In fact, one researcher estimates that there are over 800 different versions of Miranda warnings used by U.S. police agencies that vary in reading level from second grade to a post-college level. Each agency is permitted to have its own wording as long as it informs suspects that:

They have a right to remain silent

They have a right to an attorney (including a public defender if they cannot afford an attorney)

What they say may be used against them in court.

Police officers often read directly from a pre-printed Miranda card, which is dated and signed at the time it is used. The card can then be introduced as evidence to suggest that the officer properly gave the correct warnings. Many states have added to these core Miranda rights by asking suspects whether they understand the rights and they must give a verbal response. A suspect can waive or invoke the rights at any time.

When must the rights be given?

The timing of Miranda rights turns on the question of legal custody. Different from physical custody (handcuffs), legal custody means that the police have deprived the suspect of his freedom of action or movement. If the suspect isn’t free to go, then he is considered to be in custody. It is possible for an individual to be in custody without being arrested and, in those situations, Miranda warnings may be required.

Once a person is in custody and is asked questions by a state actor (such as  police officer) that are likely to result in statements that can be used as evidence, the warnings must be given. If they are not issued, any incriminating statements made cannot be used in court. Unlike what you see on television, Miranda rights are most often given at the police station – not at a traffic stop or on the sidewalk.

A suspect who is not in police custody and is not being asked questions designed to elicit answers that are to be used as evidence does not have to be issued Miranda warnings. Law enforcement can use anything said as evidence until those two requirements are fulfilled. They can ask questions about identification, including name and address, and they can use any spontaneous expressions that are made. They know that people under duress may blurt out incriminating admissions. If you are arrested, the best way to react is to be cooperative and provide identification, but don’t say anything other than that you wish to speak to a lawyer. Your silence cannot be used as incriminating evidence against you.

Criminal procedure can be complicated, but the price of ignorance is often incarceration. If you are under investigation for a crime or have had charges filed against you, you are facing a legal battle that will forever change the course of your life. Contact a criminal defense attorney to protect your rights and make sure that no statement you made after Miranda warnings should have been given are used against you at trial.

About the Author:

Dan Carman is the founding attorney of the Carman Law Firm in Lexington, Kentucky. A member of the National Trial Lawyers Top 100, he is an experienced criminal defense lawyer who honed his skills in the United States Marine Corps serving as defense counsel, prosecutor, legal assistance attorney, and in-house counsel for an infantry battalion.

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