One of the most common questions I get as a criminal defense attorney is “what happens if the police didn’t read me my Miranda rights?” Many people are under the mistaken impression that if the police didn’t read them their rights, then their charges will be dismissed. That’s not the way it works. A police officer is free to ask you questions and you are free to assert your right to remain silent at any time. Under Miranda v. Arizona, a police officer is only required to read you your rights prior to custodial interrogation. This means that two circumstances must occur simultaneously:
- Custodial: You are in custody for purposes of Miranda if, based on the totality of the circumstances, a reasonable person in your situation would feel that they are not free to leave. This usually means you are arrested, but courts can look at a variety of factors in making this determination. These include the location of the questioning, the duration of the questioning, statements made during the questioning, and the use of restraints. Thus, depending on the facts of your case, a criminal defense attorney may be able to argue that you were “in custody” before you were formally arrested.
- Interrogation: You are being interrogated if the police are questioning you and their questions are designed or likely to elicit an incriminating response. Although most questions the police ask are designed to gather information that they can use as evidence against you, the government may argue that some of their questions were not.
So what happens if the police don’t read you your rights under these circumstances? The case doesn’t get dismissed, but any statements you made should be suppressed. In other words, the statements cannot be used as evidence against you in court. Obviously, this only helps you if you made an incriminating statement in the first place. While this can certainly increase your odds of a successful defense, the government will still probably have enough additional evidence to continue prosecuting the case. In addition, even if your statements are suppressed, they can still be used to impeach you if you choose to testify and your testimony is inconsistent with the suppressed statements.
* WARNING *
The right to remain silent has been around since 1791, when the Fifth Amendment was added to the Constitution as part of the Bill of Rights. Despite its long and established history, the right to remain silent is still subject to new interpretation. Recently, in Salinas v. Texas, the Supreme Court held that a witness who is not in custody cannot exercise his right to remain silent unless he expressly invokes it. Under Salinas, you must affirmatively tell the police you are invoking your right to remain silent if you are not in custody. Otherwise, your silence in the face of questioning can be used as evidence against you in court!
Even before Salinas it was wise to invoke both your right to remain silent and your right to an attorney when being questioned by the police. Now it is imperative. If you simply invoke your right to remain silent without requesting an attorney, the police can actually continue in their attempts to question you. Once you ask for an attorney, the police must stop questioning you until you have an attorney.
Not only do you have the right to consult with an attorney, but you have the right to have an attorney present during questioning. The police will not have an attorney on call to represent you, of course, so your invocation of this right should end all interrogation for the remainder of your interaction with the police. They may give you a chance to try to call an attorney for a consultation, but chances are you will not actually get an attorney to represent you until shortly before you go to court. If you do get ahold of an attorney, they will likely advise you to invoke you right to remain silent and have an attorney present.
* This blog is published by Tucson DUI and criminal defense lawyer Nathan D. Leonardo. Nothing on this website is intended to create an attorney-client relationship. The information provided herein does not constitute legal advice, but is for general information purposes only. If you have a legal question, you can contact us online or call (520) 314-4125.