Home > Research Legal Advice > Criminal Defense > I gave a statement before i was read my rights, can it be used as evidence?
Asked about 2 years ago - Berkeley, CA
Flagi was arrested for pirated movies. i told the officer i was selling them. i didn't get read my rights until we were at the police station
One question I have is this: when you volunteered the harmful statement(s), were you free to go at that point? Were the statements coerced out of you? Did the police already have enough information to arrest you, or did they manipulate you in any way to make the statements?
The right against self-incrimination clearly applies whenever you have been detained or are no longer free to leave, e.g. in an arrest situation. Everything else requires a close examination of the facts.
Since you can't unring what bells have already been rung, I recommend you cease discussing the facts of your case here or anywhere other than with a local criminal defense attorney, who can review the reports and the evidence against you in confidence and with the care that this potentially serious charge deserves. There may a suppression issue, but there may not -- and your early admission of wrongdoing may not even be necessary for the District Attorney to prove its case beyond a reasonable doubt.
However, one thing is clear: you need an attorney. I suggest you start looking. Fortunately, the Bay Area has some of the finest criminal defense attorneys in the state. Good luck.
Allternatively, if the cops had probable cause to arrest but decided to question you first maybe it could be argued that they should have been required to arrest you first and then try to question you. But, to be perfectly honest with you, these arguments generally are not convincing to judges unless it is really clear that you are right. At least that's my experience.
To accurately answer your questions would require an experienced attorney to go through the reports and see exactly what it is that the cops say they did. But as a general rule, no they don't have to read you your rights until you are arrested.
Paul Tyler
805-889-9000
**EDIT**: Somehow the first part of my answer got deleted so let me try again: The rule is that the officers do not have to read you your rights until AFTER you are arrested. What cops often do is interrogate a subject PRIOR to arrest and call it a "pre-arrest investigation" during which time there is no requirement that you be read your rights.
In your case if the reports state that you were questioned prior to arrest, then they can use your statements against you. If it is AFTER you were arrested then yes the statements are subject to suppression.
If it was pre-arrest questioning it might be possible for an attorney to argue that in fact you were not free to leave and as such this was a defacto arrest such that they were required to read you your rights.
Basically, you do not ever have to be read your rights. the Miranda decison of the United States Supreme Court requires that you must be read your rights before a custodial interrogation. If you were not read your rights before a custodial interrogation, you may be able to suppress the statements.
I agree -- see a lawyer and let her or him go over all the details. There are a lot of variations on the themes of whatis custodial and what is an interrogation. This analysis is fact driven and your lawyer will want to go over this carefully with you. There are other grounds for suppressing statements, including showing that they were coerced.
The problem is that wilful copyright violations are federal offenses and can carry significant penalties. A good criminal defense lawyer can advise you and guide you through this.
So, fascinating as our various explanations of this are, the only way you will get to the bottom of this is to discuss it with your lawyer. In addition, you have your future on the line. So, talk to the lawyer and good luck!
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