Series: How to Protect Yourself During a Police Investigation.  Part 3: Miranda Rights

 Jake Pillsbury
 October 9, 2023

In part 2 of this series, we outlined the basic constitutional rights relevant to staying safe in an interaction with law enforcement. Most Americans have heard the term “Miranda Rights” and know that they include the right to remain silent and right to an attorney. However, many people misunderstand Miranda Warnings.  Understanding Miranda requirements can help you determine whether you are being questioned as a witness or targeted by the investigation.  More importantly, it will let you know whether an officer believes you will provide them evidence they can use to implicate you for a crime. This insight can be extremely valuable to a person trying to avoid a potential arrest.

Where do “Miranda Rights” come from?

The fifth and sixth amendments of the US Constitution guaranteed the right to remain silent and right to legal counsel. A Miranda Warning is simply a statement of those rights provided by law enforcement following arrest or detention. In 1966, the US Supreme Court decided Miranda v. Arizona, which actually addressed four different cases from four different States in a single decision. (Find a good outline of the case here). In its ruling, the Supreme Court decided that the fifth and sixth amendment rights apply to people even before a criminal trial. As a result, every person must be clearly informed of the right to remain silent and the right to legal counsel before a custodial interrogation by police, creating the Miranda Warning. In Florida, the Miranda Warning is uniform and reads as follows:

“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?”

The term “Custodial interrogation” means questioning a person who is being detained (legally or illegally) by the police. In general, detention (or being “in custody”) is defined as a situation in where a reasonable person would believe that their freedom of movement is restricted. Detention can include:

  1. Being in jail or other police custody.
  2. Being in a traffic stop.
  3. Being in handcuffs.
  4. Being surrounded by law enforcement officers.
  5. Any other circumstances which would cause a reasonable person to believe they were not free to leave.

How to Use the Right to Remain Silent

You have the right to remain silent before, during, and after an arrest. Beyond your name, you do not have to give law enforcement any information. It is generally advisable that you take advantage of the right, at least until you consult with a lawyer. Unfortunately, simply refusing to respond to police can result in continued questioning. Some law enforcement officers will provoke responses with pressure, intimidation and/or other techniques. You can put a stop to the questioning by stating, “I want to speak to my attorney. I am invoking my right to remain silent and will not answer any questions without my lawyer present.” Make this statement whether or not you have already hired a lawyer. You are not required to provide the police with any of the lawyer’s information.

Make it clear that you know your rights and are choosing to take advantage of them. I cannot stress enough how important it is to seek legal counsel before making a statement that may change your life. It is important to know that the protections in Miranda do not apply to any voluntary statements that are not the result of law enforcement questioning.

What if the Cops Never Read You the Miranda Warning?

In the event the police fail to read your Miranda Rights, it is advisable to take the following steps:

  1. Remain Calm: It is essential to stay composed when in police custody. Reacting impulsively or aggressively can result in additional charges or injury.
  2. Document the Situation: Take notes of the circumstances surrounding your detention. Are you in handcuffs? Has an officer put hands on you? Have you been told you are not free to leave? Has someone stopped you from leaving? Try to commit any details related to your detention to memory. This information can be valuable to your attorney when addressing the potential violation of your rights.
  3. Do Not Make Any Voluntary Statements: Repeat your desire to invoke your right to silence and request any attorney be present at questioning. Don’t be afraid to invoke your rights over and over if the police continue to ask you questions.
  4. Consult with an Attorney: Reach out to a qualified criminal defense attorney as soon as reasonably possible. Make sure to provide them with all details you can recall. The lawyer will help you navigate the investigation and put a stop to any questioning. Early involvement equals more protection.

If your attorney determines you rights were violated, they may argue to have your statements kept out of evidence. To succeed they will need to prove the statements were the result of a custodial interrogation. That said, it is much better to not make any incriminating statements in the first place. Let your lawyer do the talking for you. Those statements can’t be used against you. 

Common Misconceptions About Miranda Rights and Warnings

A law enforcement officer’s failure to provide you with a Miranda Warning is not a catchall critical failure in an investigation.  It will not result in any of the following:

  1. A get out of jail free card. Your bond, pretrial release conditions, or other pretrial restrictions are not going affected by a failure to warn you of your Miranda rights.
  2. Dismissal of the Charges: Failure to provide a Miranda Warning does not make the arrest illegal and does not invalidate the preceding or subsequent investigation. Statements are the only evidence affected by Miranda violations.
  3. Suppression of other Evidence. A violation of Miranda Warnings will not make a search of your person or property illegal if you were arrested legally. (Searches will be discussed in future blogs). The cops do not have to read you your rights before searching you. 
  4. Suppression of Unprompted Statements by the Accused: Voluntary, unprompted incriminating statements are always admissible evidence. Remember Miranda Violations are only relevant to statements made during Custodial Interrogation. 

Once you have familiarized yourself with these rights, you can protect yourself from self-incrimination and ensure fair treatment within the criminal justice system. Remember to exercise your right to remain silent and request an attorney when necessary. By staying informed and proactive, you can effectively navigate the complexities of the criminal justice system and safeguard your legal interests.

The rest of our series on protecting yourself in police encounters:

Part 1: Avoiding Suspicion

Part 2: Constitutional Rights