As a criminal defense attorney in Miami, FL, clients often come into my office during the initial consultation and tell me that after the arrest the officer never read them the Miranda warnings.

For most people, their only experience with Miranda warnings is what they see at the movies or on television. In the movies, the arresting officer always reads the Miranda warning to the person under arrest. But in real life, what happens if the arresting officer never reads the Miranda warning?

In Miranda v. Arizona, 384 U.S. 436, 444 (1966), the United States Supreme Court held:

“…the prosecution may not use statements whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.”

When the Supreme Court uses the term “custodial interrogation” it means to be in the custody of law enforcement officers or otherwise deprived of freedom of action in any significant way.

It is also important to consider the meaning of the term “interrogation” which expressly applies to questioning and any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect.

In most of these cases, legal questions center around whether the person was really in custody and whether the questions were really during an interrogation.

When are Miranda Warnings Required?

Although the requirement for Miranda warnings are normally limited to custodial interrogations, the following two common circumstances can elevate the encounter into a custodial encounter:

  1. When a “police-dominated atmosphere” exists; and
  2. When a law enforcement officer uses a harsh “accusatorial” tone when speaking to, or in the presence of, an accused.

In many cases, the criminal defense attorney will show that usual circumstances during the encounter between the police and a citizen elevated the encounter to one that required Miranda warnings. A criminal defense attorney will look at the number of officers at the scene, their proximity to the person making the statement, the nature of the discussion, the tone of their voice, whether the person was first accused of criminal activity, the length of the detention, etc.

If the officer was accusatory or persistently confronted the citizen with evidence of his or her guilt, then a good argument can be made that the citizen was actually in “custody” when the statement was made.

What happens if a person invokes their right to have counsel present during a custodial interrogation?

After a citizen invokes their right to have counsel present during custodial interrogation, then questioning by police must be terminated until an attorney has been made available. In some cases, during this time, the police will allege that the citizen-initiated further communication.

It is important to note, however, that the mere passage of time does not invalidate the invocation. For example, when the police come back to the accused the following day after he has invoked his right to counsel, the fact that the police gave him his Miranda rights again cannot validate a confession if the accused has neither initiated the communication nor spoken to counsel in the time between the first meeting and the second. Edwards v. Arizona, 451 U.S. 477, 482 (1981).

When are Miranda warnings NOT required?

Miranda warnings are usually not required under the following circumstances:

  1. During the typical traffic stop, including a roadside DUI investigation, until a “custodial interrogation” commences (however, if the driver is moved to a new location or put in the back of a police vehicle then Miranda is normally required).
  2. During a typical “stop and frisk.”
    • During ordinary questions in the field or at the scene for simple questions such as“What happened here?” or “Did anyone see what happened to the gun?”
  3. During encounters in the street when the subject has reason to believe that he or she is free to leave and terminate the encounter.
  4. When the suspect voluntarily appears at the police station where the subject has no reason to believe that he or she is not free to leave;
  5. During interviews at the subject’s home or of office when the subject has no reason to believe that he or she is not free to terminate the interview and ask the officers to leave.
  6. During interviews in public places such as a store or restaurant when the subject has no reason to believe he or she is not free to leave.
  7. When a subject is confined in a hospital before any arrest (except when the person is in pain or under sedation).
  8. When the person asking the questions is not a law enforcement officer (this might include a department store security officer or school administrator).
  9. When the questions are routine in nature (such as “What is your name and address?) when those questions are not calculated to elicit incriminating evidence.

Common Mistakes Made by Law Enforcement Officers

Officers in the field can make many different types of mistakes when reading Miranda warnings. In many cases, these mistakes are captured on video or audio recordings. The most common mistake occurs when the officer does not read the Miranda warning in full from either a prepared text or card.

In some cases, the person in custody will claim to be familiar with their rights and interrupt the reading of Miranda. If the officer doesn’t read the card or prepared text exactly, then the officer will often forget to say something. Not reading the Miranda Warnings properly will often lead to the exclusions of statements during trial.

If the law enforcement officer’s agency has standard written procedures that require or encourage that the officer obtains the waiver and statement in writing, then the failure to comply with this best practice can result in the exclusion of statements in a close case.

It is important to remember that the officer has the burden of proof that the waiver was voluntary, knowing, intelligent, and free of coercion.

Threats or Promises by the Officer for a Statement

In a criminal prosecution, the defendant’s statements might also be excluded if the defendant was induced to cooperate in the interview. The officer is forbidden from promising anything or threatening anything to get a person to make a statement. For example, some officers promise to issue a “notice to appear” instead of making a formal arrest if the person makes a statement.

The officer might also promise to let a second person go free if another person confesses to the crime. Under those circumstances, the criminal defense attorney can often show that the statement was not given freely and voluntarily.

Any offer to the person or assurance about what will happen during any phase of the case can lead to the exclusion of statements at trial.

Special Exception to the Admissibility of the Statements Taken in Violation of Miranda 

Even if a statement was voluntary and not coerced, but the Miranda warning was not read, the prosecutor might be able to use the statement if the defendant testifies at trial and opens the door to the evidence for purposes of impeaching that testimony.

For example, in Harris v. New York, 401 U.S. 222 (1971), the United States Supreme Court held that when a defendant takes the stand to testify in his or her own defense, he or she may be impeached by prior statements even if the statement had been ruled inadmissible (on technical grounds) when originally offered by the prosecutor.

Finding a Criminal Defense Attorney in Miami-Dade County, FL

If you were arrested by a law enforcement officers with the Miami-Dade County Police Department then contact E.J. Hubbs, an experienced criminal defense attorney in Miami, FL.

E.J. Hubbs is recognized as a board certified specialist in criminal trial law by the Florida Bar. Less than 5 percent of attorneys in Florida have earned a designation as “board certified” by the Florida Board of Legal Specialization and Education. Although not all qualified attorneys are board certified, those who have earned this important distinction have submitted to testing, an evaluation of their experience, and peer review to ensure their professionalism.

Call for a free consultation to discuss your charges, potential punishments and possible defenses to the charges. If the police are alleging that you made an incriminating statement, then talk with E.J. Hubbs about how the failure to read Miranda warnings might impact your case.