Your "Miranda Rights" are named after the U.S. Supreme Court
v Arizona, 384 US 436 (1966).
When Will The Police Read Me My Miranda Rights?
The police must advise suspects of their "Miranda Rights" -
their right to remain silent, their right to an attorney, and the right
to an appointed attorney if they are unable to afford counsel - prior
to conducting a custodial interrogation. If a suspect is not in police
custody (i.e., "under arrest"), the police do not have to warn
him of his rights.
The police are very aware of when they have to read suspects their "Miranda
Rights." The police will frequently question a suspect, specifically
telling the suspect, "You are not under arrest, and are free to go.
However, we would like you to answer some questions." After the suspect
voluntarily answers questions, and sometimes if he refuses, he is arrested.
The questioning, being voluntary and non-custodial, is usually admissible.
After arrest, the police may have no interest in further questioning,
and thus may not ever read the suspect his "Miranda Rights."
If The Police Don't Read Me My Rights, Can They Still
Use My Statement?
Sometimes, a suspect will make voluntary statements after he is arrested.
The police do not have to warn suspects not to make voluntary statements,
as long as they do not deliberately try to elicit those statements through
statements or conduct. Sometimes, suspects will express their surprise
at being caught by the police, with statements to the effect of, "You
got me." At other times, suspects will try to justify their actions
to the police after they are arrested, with statements such as, "I
don't know why I did it," or, "The drugs weren't mine - I was
carrying them for a friend." Those statements, if made spontaneously
by a suspect, will almost always be admissible in court.
Can My Silence Be Used Against Me In Court?
When a person chooses to remain silent after receiving his Miranda warnings,
that silence cannot be used against him in court. However, if a person
has not received his Miranda warnings, and remains silent, it is possible
for that "pre-Miranda" silence to be used against him. For example,
if a person is arrested for murder, or is told that he is a suspect, a
typical innocent person will express disbelief and may even try to present
an alibi. It would be unusual for a person to simply remain silent, after
being informed that he is being wrongfully charged with murder - even
people who know their right to remain silent will often express surprise.
A prosecutor may subsequently argue that the "pre-Miranda" silence
resulted from the fact that the defendant was not surprised that the police
"figured it out."
How Do I Protect Myself From Having My "Pre-Miranda"
Silence Used Against Me?
If you are under investigation for a criminal offense, you can prevent
"pre-Miranda" silence from becoming an issue by stating, "My
attorney told me never to talk to the police without talking to him first.
Do I have to answer your questions?" Once informed that you have
the right to remain silent, no negative inference can be drawn from your
exercise of that right. There is nothing wrong with making your attorney
responsible for your choice to remain silent -- it looks a lot more suspicious
if you simply refuse to answer questions than if you present the explanation
that your attorney gave you standing advice not to answer questions.
If I Remain Silent Or Ask For A Lawyer, Won't The Police
Think I Am Guilty?
The police tend to draw a negative inference from the fact that suspects
refuse to answer questions, or where suspects hire attorneys ("lawyer
up") before they are charged with crimes. However, there are many
cases where the only evidence against a defendant is his confession, or
where an innocent person finds that the police have misinterpreted his
statements. In one notable case, a police officer was a criminal suspect
-- he made a taped statement, expressing his innocence. Subsequently,
he was shocked to hear his tape recorded "confession" used against
him in court. As it turned out, his statement was recorded on a used tape,
which contained a confession from a different case. Part of the old recording,
immediately after the end of the police officer's statement, was presented
as the defendant's "confession." If that can happen to a police
officer, obviously it can happen to you.
If I Choose To Remain Silent, Or Request An Attorney,
But Later Decided To Answer Questions, Can They Use My Statement?
If the police do try to question you after your arrest, they are supposed
to cease interrogation if you exercise your right to remain silent or
request an attorney. It should be noted that the request for an attorney
is "more powerful" than a request to remain silent. Courts tend
to view police claims that a suspect changed his mind about having an
attorney with much more suspicion than claims that the suspect changed
his mind about remaining silent.
The police use numerous techniques to get suspects to change their minds
about remaining silent. One very simple technique is to use silence against
the suspect -- the officer explains, "You don't have to make a statement,
but I still have to write up this report, describing what everybody says
that you did." The officer, in front of the suspect, then starts
to type out his report, saying nothing to the suspect. It is common for
the suspect to break the silence, and to choose to make a statement.