The landmark case of Miranda v. Arizona established the law an officer must follow when conducting a custodial interrogation. The law mandates that an officer must read Miranda Rights to a defendant if the defendant is 1) in custody and 2) questioned about criminal activity. If both of these elements are present, the officer must advise the defendant:
“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 to you.”
However, as stated previously, the defendant must be both, in custody and questioned about criminal activity, for Miranda to apply. Therefore, if a defendant is not in custody, but questioned by an officer, the officer does not need to read Miranda.
(Example: An officer approaches you at a football game and casually asks you while you are in line at the concessions stand if you know anything about the theft that occurred earlier that day. You respond, “Only the fact that I stole a few beers when nobody was looking”. In this case, the officer did not need to read Miranda, because you were not in custody.)
In contrast, if a defendant is in custody, but not questioned, an officer does not need to read Miranda.
(Example: You are arrested for DUI. The officer puts you in the backseat of his car and never says a word to you during the drive to the jail. However, you voluntarily tell the officer about your night stating, “I guess I should have just gone home after happy hour, right?” In this case, the officer did not need to read Miranda, because you were not questioned.)
So, what happens if you are in custody and questioned by an officer that does not read Miranda? The common misconception is that a case will be dismissed if an officer does not read Miranda to a defendant. This is not true in most cases. If an officer does not read Miranda during a custodial interrogation, any statements made by a defendant will be inadmissible in court. However, the case will not be dismissed unless the statements were essential to prove an element of the crime.
So, what should you do in the event that an officer questions you in custody after reading you your Miranda Rights? DO NOT MAKE ANY STATEMENTS. If you are in custody, that means that a police officer has made the determination that he has probable cause or reasonable suspicion that you committed a crime. At this point, it is highly unlikely that anything you say will convince the officer to let you go. On the other hand, any statement that you make can hurt your criminal case. Therefore, you must not answer any of the officer’s questions with the exception of biographical data such as: name, date of birth, etc.
If you want the officer to stop questioning you, you can invoke your 5th Amendment right to remain silent or your 6th Amendment right to counsel. You can invoke your 5th Amendment right to remain silent by stating, “I wish to remain silent”, or “I don’t want to talk to you”. You can invoke your 6th Amendment right to counsel by stating, “I don’t want to talk to you without an attorney present”, or “I want an attorney”. These statements must be unequivocal, meaning you cannot waiver in your decision that you want to remain silent or that you want an attorney. Therefore, statements such as, “I’m not sure if I should talk to you”, and “Shouldn’t I have an attorney present to talk to you?”, will not invoke your rights and the officer can legally continue to question you.
Disclaimer: Please note that by reading this blog you are not entering into an attorney-client relationship with Hubbs Law, P.A. This blog only provides general legal information. Every case is different and you should request a free consultation to ensure that you are getting the correct legal advice for your specific case.