On nearly every episode of a law enforcement-based television show someone is read their Miranda rights. Most Americans can recite these from memory due to the prevalence of the shows. “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.” 

Due to our familiarity with these words, it is easy to believe we understand what they mean in specific situations, but most of us are mistaken. In general, an officer is not required to read you your rights in many circumstances. However, they must do so if they take a person into custody AND they conduct an interrogation.

Custody

Being in custody is not the same as being under arrest. An experienced attorney can argue that you are in custody if an officer has restricted your freedom of movement and you do not feel that you can leave the area. This confinement can occur in a room, car, or other setting. Once you are in custody, an officer must “Mirandize” you so that you are clear as to your rights and know that you can request legal counsel. If you are not read your rights while in custody, a skilled attorney can challenge the prosecutors’ right to use any statements at trial you made during that time.

Interrogation

When a police officer questions you about the occurrence of an alleged crime or your possible involvement in criminal activities, this is an interrogation. The questions may be direct such as, “Where were you on this date and time?”  If you answer questions without the benefit of being read your rights, an experienced attorney can seek to have those statements ruled inadmissible in court. Even if you admit to murder, that statement can be inadmissible if your rights were violated. Your attorney can negotiate a better plea agreement if these statements are excluded and if you go to trial, you may be found not-guilty due to a lack of evidence.

It is important to note that, like being in custody, an interrogation can occur anywhere: at the location of an alleged crime, in your home, on the street, or at the police station. The questions asked, not the location, determine whether there was an interrogation. An officer is allowed to ask your name, address, and other general information and this does not constitute an interrogation.

Right to Remain Silent vs. Right to an Attorney

Some suspects in custody and/or interrogation circumstances exercise their right to remain silent rather than their right to an attorney. What these people do not realize is that the right to an attorney is much more powerful.

When invoking the right to remain silent, law enforcement agents and prosecutors can continue to question you, and in some cases use your silence against you. A recent US Supreme Court decision, Salinas v. Texas, a man named Salinas was questioned by the police before he was arrested or read his Miranda rights. Mr. Salinas answered some questions but not others and prosecutors presented that fact before a jury, who convicted Mr. Salinas of murder. The court determined that since his Miranda Rights had not yet been read to him, prosecutors could use that information.

In contrast, when you invoke your right to have an attorney present during questioning, all questioning must stop. You will then meet with your lawyer and have his or her guidance throughout the remainder of the process.

Any time you have an encounter with a police officer and are being questioned about criminal activity, hire an experienced criminal defense attorney immediately. Board certified criminal defense attorney Ben Stechschulte understands his clients’ Miranda Rights and protects them if those rights are violated.