Donkey: What about my Miranda rights? You’re supposed to say, “You have the right to remain silent!” Nobody said I have the right to remain silent!
Shrek: Donkey, you have the right to remain silent! What you lack is the capacity.
— Shrek 2
The Rights
TV and movies have warped people’s understanding of Miranda. In fact, Miranda rights are not read to every suspect in every case, and a failure to read the rights does not mean a “get out of jail free” card.
The familiar Miranda rights say, in effect,
“you have the right to remain silent, and anything you say will be used against you in court; you have the right to consult with an attorney and to have that attorney present during questioning, and, if you are indigent, an attorney will be provided at no cost to represent you.”
The so-called Miranda rights are a summary of the Fifth and Sixth Amendments to the U.S. Constitution in more-or-less plain English that arose after Angel Miranda challenged his rape conviction in Arizona in 1967. Miranda was re-tried, convicted, and sentenced. He later died in a bar fight while out on parole.
Custodial Interrogation
Police only need to tell someone of his or her Miranda rights if the person is being “custodially interrogated” – that means interrogated while in custody. What is “interrogation” and what is “in custody”?
A failure to read the rights does not mean a “get out of jail free” card.
The police will try to get as much information out of someone as possible while maintaining that the person has not been taken into custody. Moreover, they will say that they were having a voluntary conversation, not an interrogation.
Whether words spoken to a police officer are custodial interrogation is not black and white. The question is very, very grey.
Can the Statement be Suppressed
And it usually doesn’t come up. The only time an absence of Miranda arises is if counsel files a motion to suppress certain statements. That is not going to happen in the 95% or more of cases that settle by plea bargain.
Whether words spoken to a police officer are custodial interrogation is not black and white. The question is very, very grey.
Furthermore, the court does not have to (and usually won’t) suppress statements that were obtained without a valid “waiver” of Miranda rights. The court can allow the statements if the court finds that the person was not interrogated, not in custody, the statements could have been discovered in other ways (the “inevitable discovery doctrine”), or certain emergencies (“exigent circumstances,” in lawyer-talk), or many other factors that make non-Mirandized statements admissible in court.
Don’t Talk
Like Donkey, most people seem to open up freely when police ask questions. Let your attorney defend you in front of a neutral judge; don’t try to do it yourself in the heat of the moment in front of a policeman who is engaged in the “often competitive enterprise of ferreting out crime.” (Johnson v. U.S., 1948)
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