MIRANDA WARNINGS: WHEN & WHY?
Aug. 24, 2020
This is Dennis Boren, criminal defense attorney, and former felony prosecutor. This post will be talking about your Miranda rights.
All of us have seen Miranda rights on television and in movies. We’ve probably heard them given thousands of times. Read on and find out where this TV trope comes from.
It stems from a US Supreme court case of Miranda versus Arizona, which happened in 1964 but the Supreme court ruled on it in 1966. These warnings are in the DNA of criminal justice. If you’re in custody and you’re being interrogated, you have to be warranted these rights, but what are they?
Right to Remain Silent
You have a right to remain silent. You don’t have to say anything when questioned by a police officer.
Right to an Attorney
You have a right to an attorney being present with you during questioning. That’s your fifth amendment right to counsel. You have the right to have an attorney provided for you in case you can’t afford one if there’s possible jail time or prison time involved. So that’s everything above a class C misdemeanor.
Anything you say can be used against you
You have to be told that anything you say can be used against you, so it could hurt you. What you say can be put on record and could damage your defenses.
WHEN DOES MIRANDA APPLY
Miranda Rights don’t apply in every situation. If you’re not in custody, it doesn’t apply. What does in custody mean? Well, quite simply, it just means that you’re not free to leave. And if you’re not sure if you’re free to leave or not, just simply ask the police officer, “am I free to leave?” If you are free to leave, these rights don’t apply. If you aren’t free to leave then these rights are going to apply.
Reasonableness standard: a reasonable person standard is a legal question that asks “what would a reasonable person do given the circumstances or situation?” This one is a bit of a grey area, as it can often be argued either way. It’s sometimes a little bit murky whether or not you are in custody, under the reasonableness standard.
WHEN DOESN’T MIRANDA APPLY
It does not apply to preliminary or kind of perfunctory questions. “Where are you going?” “Have you been drinking?” “What is your hair color?” The Police can ask that. Miranda rights don’t apply to any surface-level questions like that. Even though it doesn’t apply, you don’t have to answer those questions either. But those answers won’t be excluded should you be arrested later and they try to use them against you.
There is a legal term called Sua Sponte, it’s Latin for “of your own will.” That means you do it on your own. Anything you say to Police without being questioned or coerced can be used against you. For example, you blurt out an answer or the police officers are talking amongst themselves and you correct them and you say, “I wasn’t drinking, I didn’t have 10 beers, I had seven.” If they didn’t ask you the question, your answers are still subject to being used against you.
Not being read your Miranda Rights isn’t a get out of jail free card. If the police officer didn’t give you a Miranda warning, that doesn’t mean that you’ve won. Because if they’re not questioning you and you’re not in custody, that is you’re free to leave, they don’t need to warn you. Miranda rights are only for custodial interrogation.
CHANGING YOUR MIND
If you decide to talk, and then you decide that you don’t want to talk anymore, you can do that. These rights are not permanently waived.
And another thing, you don’t have these rights just at arrest. You have them all the time. So if you ever don’t want to talk to a police officer, you don’t have to. In Texas, you don’t even have to identify yourself. And of course, if it’s a traffic stop, you’re going to end up doing that or presenting your driver’s license, because they can require that. So you don’t have fewer rights before you’re in custody. You have the same rights.
THE SILVER BULLET
And lastly, there’s a silver bullet here. If you’re approached by a police officer and they start questioning you, turn on your smartphone app, turn your video or audio recording app on and say, “I don’t want to talk to you anymore unless I have my attorney or lawyer or legal counsel.” You can say it any which way you want. “I want them with me.” Once you’ve done that, everything that follows would not be admissible.