To Talk, or Not to Talk, Part 2

Posted by: Colin McCallin       04-Jan-2011       (0) Comments        Back to Main Blog

In my last blog, we talked about the pros and cons of talking to the police when under investigation for a crime. As a general rule, we concluded that the less said, the better.

What about Miranda warnings? At least once a day, one of my clients will say “the cop didn’t read me my rights! My case will be dismissed, right?” It depends, but most likely the client is wrong again. Before I discuss why, here is some background. For those of you who haven’t seen a cop TV show or movie in the last 50 years (basically if you’ve been living under a rock), Miranda warnings have been around since 1966 when the United States Supreme Court issued their decision in Miranda v. Arizona, which generally states that a law enforcement agent must advise a suspect who is both in custody and being interrogated that he (1) has the Fifth Amendment right to remain silent, (2) that his statements will be used against him, and (3) that he has a right to a lawyer. The opinion further states that a suspect must knowingly waive these rights before law enforcement officers can speak to him.

Going back to answer our original client question, this DOES NOT mean that any time the police arrest a person that they must provide a Miranda advisement. Unfortunately, we have Hollywood to thank for this misunderstanding. On TV and in movies, we always see the boys in blue arrest the bad guy and immediately start saying “you have the right to remain silent, anything you say can and will be used against you…”, and these depictions have spurned millions of people to believe that these warnings must be given when you are arrested, period.

The truth is that Miranda advisement's are only required if a person is facing “custodial interrogation.” Without recounting the thousands of court opinions that attempt to define this phrase, it basically means that you are 1) under arrest, AND 2) being questioned about the events in your case by police officers, or other government officials. Both requirements must apply for the warning to be administered. So, with few exceptions, any statements or confessions made pre-arrest are not going to be suppressed. Conversely, if you are arrested, but not questioned, no Miranda warning is required. Also, somewhat obviously, it must be a government agent who is conducting the interrogation. So if your friends arrest you for kicks on a Saturday night and take you to a police station and ask you to confess to your crimes, don’t say anything because Miranda doesn’t apply. And get yourself new friends.

To illustrate these principles, let’s say our friend Danny Driver gets pulled over after he has been drinking. The officer leans in and says, “Mr. Driver, I smell alcohol on your breath. Have you been drinking?” Danny admits that he has, and he is arrested. When Danny complains to me that his case should be dismissed because he wasn’t Mirandized, I ask him, were you under arrest when the officer asked you if you were drinking? “No, I was still in my car.” Bingo- the “custody” requirement isn’t met, so the incriminating statement will be admissible in court.

Now, let’s say Danny gets pulled over for speeding, and the officer arrests him on an outstanding warrant from a different case. Danny, in the back of the patrol car after being arrested, makes several incriminating statements about the case for which the warrant exists. The officer never advises him of Miranda, nor does the officer ever ask him any questions about his case. Are the statements admissible? Yes they are. There is no Miranda violation, because there is no “interrogation.”

But if Danny is arrested, taken to a police station or jail, and officers ask him about his crimes without providing a Miranda advisement, any statements Danny makes will be suppressed in court as a violation of his Fifth Amendment rights.

In the end, however, you can save your local defense attorney a lot of time sorting these nuances out by keeping your mouth shut in the first place! It is always better to not say anything at all.


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