An explanation of the reality of Miranda warnings and right to counsel during custodial interrogations, which drastically differs from the picture painted in movies and television.
How Hollywood gets it Wrong
One of the most commonly misunderstood legal principles I hear involves Miranda warnings and your right to counsel. During a large portion of consultation, a defendant will inevitably say, “they never read me my Miranda warnings, so they have to drop the charges, right?” Or they’ll say “they never gave me a phone to call my attorney; isn’t that illegal?”
While the movies and television shows have done a great job of bringing public awareness to the Miranda warnings (we can all hear some famous TV police officer reciting, “you have the right to remain silent . . .”) and the right to counsel, they have done a terrible job when it comes to accuracy.
While Hollywood spends money on technical advisors to make sure the star cop holds his gun correctly, the producers have apparently failed to ever once ask a lawyer if they’re correctly depicting Miranda warnings and a defendant’s right to counsel (which is odd, because isn’t Hollywood full of lawyers?).
Here’s what you need to know about Miranda: the Supreme Court decided in Miranda (and later in Edwards) that we have this bundle of rights (right to remain silent, right to counsel) and that police officers should advise people of these rights during certain circumstances.
Those circumstances are very limited and do not happen in most arrests. The only time Miranda is required to be read is prior to a custodial interrogation. What this means is that (1) you reasonably believe you are not free to leave, and (2) the police intend to ask you questions that would tend to elicit incriminating responses from you. That’s it.
In most arrests, the police do not intend to ask you questions once you have been seized. They already have enough evidence, such as in a DUI case where they’ve already got video of your driving pattern, your miserable performance of field sobriety exercises, and your breath test results. In that case, they don’t care about speaking to you, so they do not need to read Miranda warnings.
The same holds true for your right to counsel. (For clarification, we are only discussing right to counsel for Miranda purposes here—not your continued right to counsel in court proceedings.) Again, you do not have a right to counsel unless and until the police intend to perform that custodial interrogation. So, if they don’t want to interrogate you or ask incriminating questions while you are in custody, they don’t have to allow you to have an attorney present or allow you to call one.
Now, if the police have restricted your movement to the point where a reasonable person would believe they are not free to leave, and they ask you questions intended to elicit an incriminating response (so not “how about that game last night?”), and they have not already read you Miranda warnings, that is a separate issue.
First, to speak to you in a custodial interrogation, the police must receive a waiver of your Miranda rights from you. This waiver must be made knowingly, intelligently, voluntarily, and must be unequivocal and clear (it is best for them if it is in writing). If they do not have this waiver, and they still ask you questions, it doesn’t mean the case is automatically dismissed like in the movies.
What it means is that your attorney will file a motion to suppress the statements you made, and any evidence derived therefrom. If the court determines that there either was (1) a custodial interrogation without Miranda warnings, or (2) there was not a proper waiver of your rights after a Miranda warning, then those statements and evidence should be suppressed (which means they can’t be used at trial).
The same holds true if you had a right to counsel, asked for counsel (or did not waive your right to counsel), and police interrogated you outside the presence of counsel.
Then, it would be up to the State to decide if, after the suppression of that evidence, there remains sufficient evidence to proceed with the prosecution. If not, the State would likely dismiss their charges.
In most cases, a motion to suppress that is granted results in such a blow to the State’s case in chief that the State will either drop the case or offer a favorable plea deal to the defendant.
At any rate, this is the reality of Miranda warnings and your right to counsel in a custodial interrogation.
Always Retain Counsel
If you are ever in this sort of situation, remain silent and only speak to your attorney.
Our Rating is calculated using information the lawyer has included on
their profile in addition to the information we collect from state
bar associations and other organizations that license legal
professionals. Attorneys who claim their profiles and provide Avvo
with more information tend to have a higher rating than those who do
What determines Avvo Rating?Experience & background
Years licensed, work experience, education
Legal community recognition
Peer endorsements, associations, awards
Legal thought leadership
Publications, speaking engagements
This lawyer was disciplined by a state licensing authority in .
Disciplinary information may not be comprehensive, or updated. We recommend that you always check a lawyer's disciplinary status with their respective state bar association before hiring them.