Hey! They Didn’t Read me my Rights!

As a criminal defense attorney, I hear that a lot.  And sometimes it’s really important.  Other times, not so much.  I’ll explain.

The Constitutional Rights that should be read to every arrestee, the ones we’ve all heard read on cop shows on TV, are commonly known as “Miranda Warnings”.    That name comes from the seminal 1966 United States Supreme Court case, Miranda v. Arizona[1], where the Court first established the rule that a criminal defendant was entitled to be advised of his or her constitutional rights prior to custodial interrogation and that any statements elicited in violation of that rule would be deemed “inadmissible” as evidence against the Defendant in any subsequent proceeding.  Those now familiar “Miranda Warnings” are (with some minor variation permitted):

“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. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”

Before Miranda, there was no requirement that law enforcement inform an arrested person they had the right to decline to speak to the officer and, further, that they had the right to an attorney to advise them, even if they could not afford to hire an attorney.  The Court said that it was critical that an arrested person, or any person held in-custody, be provided that information in order to make an informed decision on whether or not to speak to the police and answer potentially incriminating questions.  Because, as Chief Justice Earl Warren noted, “the modern practice of in-custody interrogation is psychologically rather than physically oriented. As we have stated before, – – – coercion can be mental as well as physical, and that the blood of the accused is not the only hallmark of an unconstitutional inquisition.”  In other words, it’s not just the rubber hose that can elicit involuntary and often, false confessions, but also the psychological and emotional stress connected with any custodial police interrogation.  After all, the police have guns and badges and the power to take away one’s liberty, i.e. put you in the slammer.

So, they didn’t read me my rights.  Does that mean my case will be dismissed?

Probably not.  There are any number of treatises on Miranda and the nuances, exceptions and carve outs are too numerous to recount or explain here.  But suffice it to say that, at its essence, Miranda is a ‘no harm, no foul’ rule’.  Two things are required before the police are obligated to provide warnings (or run the risk that the confession the elicit will be deemed inadmissible): Custody, or detention that is the functional equivalent of custody and questioning aimed at eliciting incrimination information.  The Miranda Court defined “custodial interrogation” as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”  Thus, if the subject wasn’t under arrest or had his or her freedom of movement curtailed in any significant way, then the police are free to question that person before “mirandizing” them without fear that any incriminating responses they get will be suppressed by the court.  At the same time, if the person is arrested or otherwise had their “freedom of action” significantly curtailed (such as being placed in hand cuffs or the back of a police car without being actually told they were under arrest) but no questions designed to elicit incriminating information were asked, then no warnings are required.

My car was stopped by a police officer who didn’t read me my rights.  Should she have?

Remember the exceptions and “carve outs” I mention earlier?  Traffic stops are one of them.  Thus, even if you are asked to get out of the vehicle, for example, to perform roadside tests, that officer doesn’t have to read you your rights.  If she orders you out of the car, that’s closer.  If she draws her weapon then it’s probably custodial and a recitation of your constitutional rights is required.

Complicated stuff and few of us have the wherewithal to bring all this to mind when we are confronted with the grim circumstance of being asked questions by an officer or multiple officers, wearing badges and uniforms and carrying weapons.  In most, if not all circumstance, it’s best not to answer questions if you have any inkling you are the subject of the investigation.  False assurances like “we just want to hear your side of the story” should not lull you into the false impression that the officers have your best interests at heart.  Perhaps they do.  But its next to impossible to un-ring the bell once incriminating statements have been made.  Don’t lie (that can be a crime in and of itself!), but think twice before deciding to “cooperate”. Most importantly, ASK FOR AN ATTORNEY! You are entitled to one and their advice, even that of a public defender who are all you are likely to be able to speak to at 2 am, is invaluable.

[1] 384 U.S. 436, 479, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).


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