Use Your Right to Remain Silent
I had two clients call me recently about why they were not provided their “Miranda” rights prior to the police asking them questions. If you are not under “arrest,” the rights are not triggered.
Miranda v. ArizonaThe landmark case of Miranda v. Arizona continues to evoke confusion by many individuals confronted by the police. Ernesto Miranda, a rape suspect, was arrested and taken to the police station. After two hours of questioning, he signed a written confession and was subsequently found guilty. Miranda appealed his conviction on the grounds that prior to confessing, he had not been informed of his Fifth Amendment right against self-incrimination or his Sixth Amendment right to counsel.
The United States Supreme Court overturned Mr. Miranda's conviction finding that the coercive nature of detention in a police situation necessitates certain safeguards in order to ensure that suspects that do not intelligently waive their rights. The ruling held that when law enforcement officers take a suspect into custody with the intention of conducting an interrogation, they must advise the suspect of certain fundamental rights.
(1) The right to remain silent;
(2) Anything you say will be used against you in court;
(3) The right to have an attorney present;
(4) If you cannot afford an attorney, one will be provided at no cost to you.
The environment that Miranda must be invoked requires custody and interrogationKeep in mind that the environment that Miranda must be invoked requires custody (arrest) and interrogation (questioning) by law enforcement officers. Hence, if they are not cops, Miranda does not apply. Moreover, statements "volunteered" by the suspect at any time; "spontaneous" statements, or providing basic personal information such as name, address, and social security does not require the advisement. I placed quotes on the words volunteer and spontaneous. As a criminal defense attorney, these types of statements are subject to analysis and should be carefully scrutinized if they are truly voluntarily or spontaneously given.
Brief analysis of each right:(1) The right to remain silent: KEEP YOUR MOUTH SHUT. It is not called a warning for nothing. You may safely state some basic personal identification.
(2) Anything you say will be used against you: YOU CAN COUNT ON IT.
(3) The right to have an attorney: To many this may appear to allow you to request for an attorney at any time during interrogation. NO, ONLY BEFORE THE INTERROGATION. Many also believe that "I do not need an attorney. I did not do anything wrong." This belief is disastrous--the police work for the prosecution. If you are a suspect or on your way to becoming one, the police are not on your side.
(4) If you cannot afford an attorney, one will be provided at no charge. It is always amazing to me that we usually take up offers that are free. THIS IS FREE. Do not be afraid to use it.
Miranda waivers must be unequivocalMiranda waivers must be unequivocal. It must be a clear invocation--answers such as "Maybe I should talk to a lawyer" have been analyzed in court. This was examined in Davis v. United States. Agents of the Naval Investigative Services interrogated the defendant in connection with a beating death of a sailor. Initially, the defendant waived his rights but 90 minutes into the interview, he states, "Maybe I should talk to a lawyer." The agents asked clarifying questions and the defendant replied, "No, I don't want a lawyer," the interrogation continued with resulted in incriminating statements. The court rejected the defendant's argument that any mention of a lawyer, however ambiguous is insufficient to invoke the right to counsel and that questioning must cease. The lesson here is that make your requests clear and simple--no wavering is allowed.