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Where in the World are my Miranda Rights? (Beginner's Guide to Miranda Rights)

Carmen Miranda, no relation, but she's fun. "When I was arrested, the cop didn't read me my Miranda rights!!!"

At Colbert Law, we've spoken with many individuals who were incredibly upset that the arresting officer didn't read them their Miranda rights. They didn't understand why it didn't happen and often asked if that could be a basis for throwing the entire case out. Movies, television, they often show arrest after arrest and the officers always read the beginnings of the Miranda warnings to the individual being arrested. We know that they exist, we expect to be advised of them.. so what gives?

First of all, where did the Miranda rights come from?

Ernesto Miranda Back in 1966, Ernesto Miranda was accused of robbery, kidnapping, and rape. During police interrogation, he confessed to the crimes. However, the police officers questioning Ernesto used intimidating methods and brought into question whether his rights were violated. The court in Miranda v. Arizona decided that suspects must be informed of their specific legal rights when they are placed under arrest. Miranda's conviction was overturned and he was retried with witnesses and other evidence. Miranda was convicted, but this time he was assured of having a fair trial. In 1964 the court in Escobedo v. Illinois added that a suspect has the right to an attorney to be present during questioning AND/OR to talk to an attorney before being questioned by police if the officer intends to use the suspect's answers during a trial when the suspect is being detained and questioned against their will. In 1968 the final text for the Miranda Warning was provided by California deputy attorney general Doris Maier & District Attorney Harold Berliner. Before then, the confession only needed to be voluntary but didn't take into account whether a person was of sound mind or under duress.

What are the Miranda rights/warnings?

attention-303861_640"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?” Good to KnowNOTE: If you want to USE your right to remain silent, you have to TELL the officer that you are using that right. In a recent case, #SCOTUS (Supreme Court of the United States) ruled that your SILENCE can be used against you if you do not TELL the officer you are USING YOUR RIGHT. The rights don't have to be read in order, but the waiver does have to be voluntary AND the suspect has to understand the rights they are being advised. In some states law enforcement will make a person aware that “We (Law Enforcement) have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court.”

So, WHEN do the Miranda rights have to be read?sentry-310743_640

Think of it like a math equation. Custody + Interrogation = Miranda Rights. Both have to be present in order for the Miranda warnings to be required. custody [ kuhs-t uh-dee] imprisonment; legal restraint; the detainer of a man’s person by virtue of lawful process or authority; actual imprisonment. Custody can be with or without handcuffs, in some instances a person can be in "custody" when a law enforcement officer has the suspect's driver's license and they are not free to leave. interrogation [inˌterəˈɡāSH(ə)n] when a witness or a suspected criminal is being questioned, beyond the person's identifying information (name and DOB, etc.) donald-duck-498512_640It is quite possible to be in custody and to not be interrogated. For instance, an officer can observe a crime (open container), arrest a person, and take them to jail without asking any questions about the crime. It is also possible to be interrogated without being in custody. This can be where a person is given back their driver's license at a traffic stop and the ticket, but the officer continues to ask questions. It may feel like you're not free to leave, but in this instance the court may determine that the suspect was free to leave. Also, a detective can ask a person to come down to the station to answer questions. The person would be subject to interrogation, but they came into the station of their own free will and would be able to leave. In both examples, it would not be necessary to give a suspect of the Miranda warnings. Good to KnowNOTE: If you aren't sure whether or not you're in custody, ask. It's that simple. Ask the law enforcement officer if you are free to leave. If they say yes, leave. If a suspect is in custody, handcuffed and/or a law enforcement officer has made it clear (verbally or otherwise) that a person is not free to leave, and then the officer asks a suspect questions about a crime, Miranda rights have to be read. If Miranda warnings are not given in the custody + interrogation scenario, the statements made cannot be used against the suspect at trial. The case doesn't get tossed outright, but the evidence that comes from the Constitutional violation does. Each case and scenario is different, and facts make a big difference. This blog provides basic information, but there may be other circumstances where Miranda does not apply (i.e. the "ongoing emergency rule"). It's always good to know your rights and to USE your rights.If you have a question about your Miranda rights or think they have been violated, give Colbert Law a call at (407) 705-3220 or by dialing #DUI from your Sprint, AT&T or T-Mobile phone.