Written by attorney Daniel Kieth Martin

What if you were not read your 'Miranda Rights?'

Everyone has heard about Miranda Rights. Anytime a person is arrested on television or in a movie the officer reads them their Miranda Rights. Most people have heard these rights so many times they can recite them, if you are unsure about the exact rights that are referred to as Miranda Rights they are:

Once the officer has read these rights to a person the officer then usually asks if the person understands their rights and if the person wants to talk to the officer without an attorney. The rights do not explain what will happen if you are not read the rights. More about the Miranda v. Arizona case

So what happens if a person is arrested and they are not read their Miranda Rights? It depends on what exactly happened in the case. The important thing to remember is that just because a person was not read their Miranda Rights doesn't mean that the arrest was illegal.

In most cases the fact that a person was arrested and was not read their Miranda Rights will have no effect. The Supreme Court said when a person is in custody and subjected to interrogation by law enforcement, they have the right to have an attorney present and they have to notified that they have the right to be silent.

  • The right to remain silent
  • The right to have an attorney present during questioning
  • If you cannot afford to hire a lawyer, a lawyer will be appointed to be present during questioning

Custody defined

Custody is defined as a situation where a reasonable person would feel that they are not free to leave. Sometimes it difficult to say whether a person would reasonably believe they are not free to leave. The court will look at the whole picture. How many officers were present, were there guns drawn, was the person in the back of a patrol car? The court will consider the totality of circumstances in deciding whether or not a person was in custody.

What is interrogation?

Interrogation is defined as statements or questions intended to illicit an incriminating response. If the booking officer asks for your birthdate it is probably not going to be considered interrogation.

If a person is found to have been in custody and they made statements during interrogation the statements they made cannot be used in the prosecutor's case in chief unless there is an exception. The case in chief is first part of a trial where the prosecutor calls witnesses and introduces evidence to prove their case.

After the prosecutor's case in chief the defense gets the opportunity to call witnesses and introduce evidence. Once the defense rests it's case the prosecutor gets the opportunity to introduce rebuttal evidence. If the defendant took the stand during the defense's case the prosecutor can call the officer to testify to the defendant's statements even if the defendant was not read his or her Miranda Rights.

More often than not the reason a person is not read their Miranda Rights when they are arrested is because the officers believe they have enough evidence to arrest the person without asking them any questions. For example a person is recorded on video surveillance by a department store loss prevention agent. The person is detained and the merchandise is located in the person's pocket.

When officers arrive and put the person in hand cuffs they can watch the video and speak to the loss prevention agent. The officers do not need to interrogate the person because they have enough evidence to prosecute the person without getting any statements from them.

Consult with an attorney

If you believe that you made statements while being interrogated without waiving your Miranda Rights you should consult with a criminal defense attorney to discuss your case. Every situation is different an attorney can give you an idea if your rights were violated.

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