Miranda rights are protections extended to suspects who are being interrogated while in police custody as part of a criminal investigation. Miranda Rights are named after the 1966 U.S. Supreme Court case, Miranda v Arizona, 384 US 436 (1966), through which they were extended to people being questioned by the police. The Miranda ruling requires that, prior to any questioning, a person who is in police custody must be warned that,
He has the right to remain silent;
Any statement he makes may be used as evidence against him in court; and
He has the right to the presence of an attorney; and
If he is indigent a lawyer will be appointed to represent him.
As set forth in the Syllabus to the Miranda decision, the Supreme Court defined the following standard for Miranda warnings, which must be met by both the states and by the federal government when a custodial interrogation occurs:
[T]he person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him.
This standard applies to both the federal government and to all states.
The Federal Miranda Warning
Although no specific phrasing is required by the Supreme Court, Miranda rights are usually stated 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 appointed for you.
State Additions to the Miranda Warning
Warnings to Non-Citizens - some of the states that border Mexico, including Arizona, California, New Mexico and Texas, require an additional warning to suspects, “If you are not a United States citizen, you may contact your country's consulate prior to any questioning.”
Confirmation of Understanding - Some states require confirmation that the suspect understands his or her rights before custodial interrogation may proceed:
Do you understand each of these rights I have explained to you?
Having these rights in mind, do you wish to talk to us now?
If a suspect answers “no” to the first question, the rights are again recited to the suspect. If the suspect answers “no” to the second question, the suspect’s Miranda rights are invoked and the police are to stop interrogation until such time as the suspect’s rights are lawfully waived.
States that require these additional warnings include California, Florida, Illinois, New York, North Carolina, Pennsylvania, South Carolina, Texas Virginia, and Washington. The addition of this warning was likely to bring the state's Miranda warning into compliance with the Vienna Convention on Consular Relations.
The Right to Stop Interrogation - At least one state, Virginia, requires that suspects be warned, “You can decide at any time from this moment on to terminate the interview and exercise these rights.”.
The police must advise suspects of their Miranda Rights before conducting a custodial interrogation. A person is in police custody when the under the totality of the circumstances, including the person's freedom to leave the scene and the purpose, place and length of any police questioning, a reasonable person would understand himself to be in police custody and unable to leave. If you are not in police custody, the police do not have to read you your Miranda rights prior to questioning.
For example, if the police contact you by telephone, you have no plausible argument that you are in custody during your conversation with the officer over the phone and thus cannot claim a violation of your Miranda rights if the police later seek to use your statements in court. The police are very aware of when they have to read suspects their Miranda Rights. The police will frequently question a suspect, and specifically tell 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 suspect's answers given to the police questions, being voluntary and non-custodial, are 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 interrogate a person who is in their custody without first reading the person's Miranda rights, that person may use that violation to try to convince a court to suppress the evidence that is obtained as a result of the interrogation -- that is, to keep the police from using in court any statements made during the interrogation, along with any evidence obtained as a result of the statements.
Miranda does not apply to all statements made by a suspect who is in police custody. Sometimes a suspect will make voluntary statements after he is arrested. For example:
Voluntary Statements - As long as the police do not deliberately try to elicit self-incriminating statements from a suspect through statements or conduct, the police do not have to warn the suspect not to make voluntary statements.
Spontaneous Declarations - 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.
Additionally, if a statement leads to the discovery of other evidence, even if the statement itself was taken in violation of the Miranda ruling the police may be able to use that evidence. While the Miranda violation may be asserted as a basis to try to suppress the evidence, the prosecution may attempt to establish that the evidence would have been discovered even without the inadmissible statement, and should thus be admissible.
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, and even people who know their right to remain silent will often express surprise. A prosecutor may subsequently argue that the defendant's pre-Miranda silence resulted from the fact that the defendant was not surprised that the police figured out who committed the crime.
How Can You Protect Yourself From Having Your Pre-Miranda Silence Used Against You
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.
Will The Police Think You Are Guilty If You Remain Silent Or Ask For A Lawyer
When a suspect refuses to answer questions of hires an attorney ("lawyers up") before being charged with a crime, the police are likely to draw a negative inference. However, there are many cases in which:
The only evidence against a defendant is his confession;
Statements made to the police are summarized in a police report in a manner that makes them much more damaging to the defense; and
Where an innocent person finds that the police have misinterpreted his statements.
In one notable case, a police officer was a criminal suspect. He gave a taped interview in which he answered all questions asked by the investigating officers and asserted his innocence. He was later shocked to hear his tape recorded "confession" being introduced against him in court. As it turned out, his statement was recorded on a used tape that 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 the officer's "confession."
If that can happen to a police officer, obviously something similar can happen to you.
If you voluntarily change your mind about exercising your Miranda rights, your subsequent statements are admissible as evidence against you. Any effort to exclude those statements would have to either convince a court that you did not in fact waive your rights, or that you did so under circumstances that invalidate your waiver of your rights -- such as the waiver having resulted from improper threats, coercion, or mental incapacity.
Following an initial assertion of Miranda rights, many police agencies are careful to use a written waiver of rights form, on which the suspect checks off each of his rights, and signs to indicate that he understands and waives those rights, to get a clear waiver of rights on an audio or video recording of the interrogation, or both. If the police 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.
In many ways, 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 employ a number of 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.
If the police violate a suspect's Miranda rights, leading to a court's exclusion of the suspect's self-incriminatory statements from evidence, the statement may potentially be used to impeach the suspect in subsequent court proceedings. For example, if the suspect takes the witness stand in his own defense and tells a different story than he gave in the suppressed statement, those contradictory elements of the suppressed statement may be introduced to show that the suspect has changed his story.