“You have the right to remain silent . . .”

Often, people will complain to me that the police never read them their rights when they were arrested. Despite what’s shown on TV and in the movies, the police do not have to read someone their rights the second they’re arrested.  The Miranda rights (“You have the right to remain silent”, etc.) are only required to be given when a person is “in custody” and being interrogated by the police. Both custody and interrogation must be present at the same time for the rights to be given. If you’re in custody (arrested), but they’re not asking any questions of you, the police are not required to read you your rights. In the same way, not every questioning by police is done while you are “in custody.”

If you are being “detained” by the police during an investigation, that is not the same thing as “custody” and you don’t have to be read your rights, even in the face of very direct accusatory questioning. If you are formally arrested, you are clearly “in custody” and must be read your rights. But what if you’ve been contacted by the police, handcuffed and put in a patrol car? Are you arrested? Are you only “detained”? These are fine distinctions, but they may have enormous impact on your case. What the police did, what they said, and the specific language they used can all change your status from “detained” to “arrested” in the eyes of the law. Even if this is an innocent mistake by the police, if the Miranda rights were required, but not given, any statement should be thrown out by the Judge.

15 Trackbacks

  1. […] I wrote in another post, the Miranda rights are important Constitutional rights that must be given to you before any […]

  2. […] Don’t get yourself or them in that position – don’t discuss what happened.  You have constitutional rights that can protect you, but only if you’re aware of them and use […]

  3. […] Amendment of the Constitution says you have the right to remain silent.  Yes, the police must warn you of your rights if you’re arrested and being questioned, but they’re not required to if you are not in […]

  4. […] you’re arrested, they must advise you of your Miranda rights before any interrogation.  If you hear those magic words starting (”You have the right to […]

  5. […] If you do not make any incriminating statements (or if you do, but we can suppress them based on Miranda violations), then the entire circumstances will need to be examined to see if there is enough evidence to […]

  6. […] the phone, you’re not “in custody,” so they have no obligation to read you your Miranda rights or otherwise warn you about using your statement against you.  There’s no such thing as […]

  7. […] the phone, you’re not “in custody,” so they have no obligation to read you your Miranda rights or otherwise warn you about using your statement against you.  There’s no such thing as […]

  8. […] If you do not make any incriminating statements (or if you do, but we can suppress them based on Miranda violations), then the entire circumstances will need to be examined to see if there is enough evidence to […]

  9. […] Amendment of the Constitution says you have the right to remain silent.  Yes, the police must warn you of your rights if you’re arrested and being questioned, but they’re not required to if you are not in […]

  10. […] you’re arrested, they must advise you of your Miranda rights before any interrogation.  If you hear those magic words starting (“You have the right to […]

  11. […] conclusion that you intended to steal. Keep in mind – store security are not required to give Miranda warnings if they ask you any questions. That only applies to questioning to the police. That doesn’t […]

  12. […] a detention, they may continue to question you, but importantly, they do NOT have to read you your Miranda rights. Do you still have a right to remain silent and not implicate yourself? Absolutely, but during a […]

  13. […] conclusion that you intended to steal.  Keep in mind – store security are not required to give Miranda warnings if they ask you any questions.  That only applies to questioning to the police.  That […]

  14. […] that you intended to steal.  Keep in mind – store security are not required to give Miranda warnings if they ask you any questions.  That only applies to questioning to the police.  That […]

  15. […] arrest or charges filed isn’t necessarily the end of the story.  There can be search issues, Miranda violations or other legal and factual defenses available to you that can only be discovered after a thorough […]

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