As criminal defense attorneys can explain, a good portion of initial consultations is spent dispelling many of the myths and misunderstandings that people have about the Criminal Justice system. Television and movies especially have contributed to widespread misconceptions about what is “supposed to” happen during arrest, trial and on appeal.
One of the most common misconceptions revolves around one’s 5th Amendment right to remain silent and the Miranda warnings. We all know what the warnings are:
You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney one will be provided for you.
Our lawyers, cannot count how many times clients have come in excited to say that their case will be dismissed because “they didn’t read me my rights.” Despite the portrayal of Miranda warnings in movies and television—where we always see the “perp” being read his rights as police slap the cuffs on and guide his head into the backseat of the squad car—officers are not required to read you your rights at all, let alone while they are arresting you. In fact, the warnings have nothing to do with the arrest itself.
Miranda warnings are only required prior to a custodial interrogation. It is important to remember that the 5th Amendment does not give us blanket protection from any self-incrimination. It only protects us against being compelled to incriminate ourselves. So, if you are in custody but are not being questioned, or you are being questioned but are not in custody, you are not entitled to the warnings. In other words, if you start spouting off in the back of the cruiser about how sorry you are, but you did so without being prompted by the officers’ questioning, there is no “interrogation” and the statements can be used against you. Likewise, if you voluntarily meet with officers to be interviewed—even at the police station—you are not “in custody,” so Miranda does not apply.
An experienced criminal defense attorney can assess whether statements were given voluntarily, whether Miranda applies to a particular case and whether to seek suppression of any self-incriminating statements. It is best, though, to know your rights and exercise them regardless of whether your rights are read to you or not.
