Russell Hebets April 25, 2022

You have the right to remain silent. Anything you say can and will be used against you….These are the opening phrases of the infamous Miranda warning. If you have not heard these words in real life, you have likely heard them on television. You may even have watched a TV court case fall apart when the clever attorney (the one in the red suit) finds out that her defendant was not “Mirandized.” Well, we hate to break it to you, but in real life court cases, Miranda warnings are a little more complicated. Here are 5 myths about Miranda rights, debunked.

1. Cops have to read your Miranda Rights in order to ask you any questions.

Wrong. When you are not in custody, cops can ask you any questions they want. If you are talking to the police without being in custody, this is considered a consensual encounter, meaning you are agreeing of your own free will to talk to them. If they ask you for your I.D., you have to give it to them. Beyond that, you are not obligated to talk.

SCENARIO: You are pulled over by the police. They approach your vehicle and say, “Have you been drinking?” You say, “Yeah, I had nine martinis.” Oops. Wait. Why didn’t he tell you that you had the right to remain silent? Wouldn’t you have remained silent if he had reminded you?  Maybe, but he had no obligation to because he had not taken you into custody just yet. He was just casually trying to get probable cause. And you just gave it to him.

2.  Anything you say before police read you your Miranda rights cannot be used against you.

Nope. Everything you say before you are advised of your Miranda rights is fair game, just as much as anything after. Like that phrase you’ve heard so much on television, whatever you say to a police officer can and will be used against you. This means that even if the cop is just collecting information before taking you into custody, if you admit guilt in the first few minutes of talking with him, that is evidence he can use.

SCENARIO: You are handcuffed and put in the back of a police car. The officer is quiet. Too quiet. It’s making you nervous. You blurt out, “I did it, officer. I stole that Ferrari and I don’t feel bad about it.” You might think that he can’t use that confession because he never Mirandized you. But he never began the interrogation. Sure, you were already in police custody, but he asked you no questions.  Therefore, no Miranda warning was necessary.

3. Your case will be completely dismissed if the police did not Mirandize you.

Not necessarily. Say that the stars align and the police take you into custody AND start pummeling you with questions WITHOUT advising you of your Miranda Rights. This does not necessarily mean that your case will get dismissed outright. It only means that a skilled attorney can probably suppress that verbal evidence. If the whole case rests on a confession and you were not Mirandized, then you might be in luck. But if there is other evidence involved that was lawfully collected, it will be- you guessed it!-used against you.

SCENARIO: You kidnapped your neighbor’s parakeet and now the police have you in their custody. Although they have given you a cup of bad coffee, they have not read you your rights. They start asking you about the bird. Why did you do it? When? How? You break down and tell them everything; you love the bird, you treat it like a king, feed it the best quality seeds, etc. In court, your lawyer suppresses the confession. Whoo! But the police got a search warrant and collected green feathers they found scattered all over your condo. You’re convicted. And you have to give back that beautiful bird.

4. You must talk to the police after they read your Miranda rights.

Incorrect. Just because the police have read you your rights does not mean you have to or should speak to them. They are advising you, in fact, that you have the express right NOT to talk to them. You have the Fifth Amendment right not to incriminate yourself. You also have the Sixth Amendment right to obtain a lawyer who will likely tell you not to talk. And there you have it. You do NOT have to talk to the police.

SCENARIO: The police have taken you in. The interrogation room is comfortable. The chairs are nice and they even gave you a Dr. Pepper. They read you your Miranda rights and start asking you questions. You say, “Should I talk?” They say, “Yes. Talk. We’ll go easy on you if you talk.” You say, “But I have the right to remain silent.” The cops shrug. They smile. You talk. At court, your confession is used to convict you. Do the cops go easy on you? No. No, they don’t. 

5. The defendant in the famous Supreme Court case Miranda v. Arizona got off, scot free.

Negatory. In 1960, Ernesto Miranda was suspected of committing rape and kidnapping. Miranda was interrogated by the police and pressured into giving a full confession. At trial, his attorneys tried to suppress the confession, arguing that it was involuntary. Miranda appealed several times, failing each time. When the case reached the Supreme Court, the conviction was finally thrown out. This created the legal precedent that made Miranda warnings mandatory before any police interrogations. However, Ernesto Miranda was retried without his confession and, due to the bevy of other evidence, was ultimately convicted of his crimes.

SCENARIO: You are watching a show about criminal law cases. You watch as the lawyers expertly humiliate interrogators on the stand. “But isn’t it true that you never read Mr. Murderer his Miranda rights, sir?” The interrogator looks down in shame and mumbles. “No, I forgot.” Gasps sound in the fictional courtroom. The judge shouts out, “Case dismissed!” And you shout at the TV in outrage, “Lies! All lies!”

While a failure to Mirandize is not always the cure-all it purports to be on television, there are many situations when a mistake by law enforcement can seriously impact a legal case. If you suspect this may have happened to you or a loved one, call us. We can help you.

Listen to the full discussion about Miranda rights and tips on how to speak to the police here:

Ep. 58 – To Record or not to Record – Interacting with the Police Part 2

Ep. 57 – To Speak or Not to Speak – Interacting with the Police Part 1