Miranda Rights and Police Questioning

This article will explain to your rights to have a “Miranda warning”, also known as your “Miranda rights”, when you may be subject to an arrest, search and seizure of property.

What are “Miranda Rights” and the “Miranda Warning”?

The Miranda warning consists of a group of statements (also known as “Miranda Rights”) that are required to be provided by police to a criminal suspect in police custody to inform that person about their Constitutional rights against self-incrimination. If the police obtain a statement by a criminal suspect who is in police custody, it will not constitute admissible evidence in criminal court against that person unless he or she was first informed of his or her Miranda Rights. As a result, criminal suspects who make statements against their interests while in police custody do so with full knowledge that these statements can be used against them in a criminal court. The minimal Miranda Warning as per the Supreme Court case is as follows:

You have the right to remain silent. Anything you say or do can and will be held against you in the court of law. You have the right to speak to an attorney. If you cannot afford an attorney, one will be appointed for you. Do you understand these rights as they have been read to you?

As long as these rights are made clear, the exact wording is not important. However, some states require additional statements. Virginia also requires the following additional statement:

You can decide at any time from this moment on to terminate the interview and exercise these rights.

New York, California, Texas, Illinois, Florida, Pennsylvania, North Carolina, South Carolina, Virginia and Washington also require the following two questions to be added after a Miranda Warning:

Do you understand each of these rights I have explained to you?
Having these rights in mind, do you wish to talk to us now?

Texas, New Mexico, Arizona, and California require an additional warning to criminal suspects who are not United States citizens:

If you are not a United States citizen, you may contact your country’s consulate prior to any questioning.

As you can see, it is of critical importance to have a good criminal defense lawyer available to you, not just for trial but also during the earliest stages in a criminal case such as questioning.

Who is Miranda? Why Have a Warning?

Not every person knows their legal rights. The police are trained to know the law and, in the past, were able to elicit responses from criminal suspects that was against their interests, not being aware that their statements could be used in criminal court against them at trial. The case of  Miranda v. Arizona occurred in 1963. Ernesto Miranda was accused of kidnapping and raping an 18-year-old woman who was mildly retarded woman. During questioning by the police, he confessed to the crime. The police did not tell Miranda that he was not required to speak and that he could have a criminal defense lawyer present during questioning. Miranda’s lawyer made a motion in court to get the confession deemed inadmissible as evidence at trial but the judge denied his motion. Miranda’s case was appealed all the way to the US Supreme Court. In 1966, the US Supreme Court ruled that the damaging statements Miranda made to the police could not be used as evidence at trial since Miranda had not been advised of his rights by the police prior to questioning.

Commonly Misunderstood Miranda Issues

Miranda Rights are not related to the First Amendment right of freedom speech. The right to remain silent is based upon the Fifth Amendment to the Constitution of the United States and a part of the famous “Bill of Rights” which protect a person’s liberties and freedoms. The commonly used phrase – “I plead the Fifth” – refers to the Fifth Amendment rights that every citizen has to refuse to answer a question if doing so might provide evidence used against them in a criminal court. No person is required to “be a witness against himself.”

The Miranda Warning only applies to a suspect who is detained and in police custody. If the police question a person in the street and the person provides self-incriminating evidence, it is not in violation of the suspect’s Miranda Rights unless that person was in police custody, such as being handcuffed and surrounded by police. A common definition of “police custody” is  one where a person is deprived of his or her liberty, forcibly restrained, in the custody of the police or a legal authority in response to a criminal charge.

Michael M Wechsler, Esq.

Michael M. Wechsler is an experienced attorney, founder of TheLaw.com and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at Zedge.net and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.

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