Almost everyone who has ever watched television or gone to the movies thinks they know the rights the police would read them if they ever found themselves in the unfortunate situation of being stopped by the police and questioned.
Even many children can recite the words from memory: “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 speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense.”
Nevertheless, there is a lot of confusion as to how those rights, known as Miranda warnings, are applied.
Frequently, people who have been arrested will ask their attorney if their case can be dropped because the police did not inform them of their rights. However, in many cases, it turns out that the police arrested them, but never questioned them. So, if you are not questioned, the police do not need to read you your rights, even though it might be good practice if the police did so every time just to be sure.
Also, the police do not need to read you your rights unless they question you while you are in custody. If the police merely question you out in the street while not in custody even if they suspect you, they do not have to tell you your Miranda warnings.
Now, in that situation, this is where it can get tricky and a lawyer might be of great help to you in getting your statements thrown out in court if you wound up saying anything that might have incriminated you. This is because there are situations where one is not technically placed under arrest or put in handcuffs and yet good legal counsel can argue that you were, in effect, in custody, because circumstances may have implied that you were not free to leave. You were somehow led to believe that you couldn’t just cut the conversation off with the police officer off and simply walk away.
Whether to Speak to the Police Even If Read Your Rights
It is generally advised for someone suspected of criminal activity not to speak to the police at all ever. Even if a person is truly innocent of any crime, they might say something in a way that it can be misinterpreted and used against them. Or they may just be nervous and say something by mistake that mistakenly makes them appear guilty of something. Also, some people think they are savvy and smart enough to speak to the police and yet don’t understand that they may inadvertently be admitting to criminal activity.
For example, there have been times that someone suspected of an illegal drug crime has said to the police that they have never sold drugs, just given some drugs to a friend for free if they had extra. They didn’t realize that the crime is not whether one made money or not from drugs; the crime is just that one distributed drugs whether paid or not. So, that person, thinking they were outsmarting a police officer by explaining that they were not selling drugs actually wound up giving a complete confession to the crime of distribution of drugs.
In another common example, someone stopped and suspected of drunk driving may tell the police officer that they are not drunk and only had two drinks. They don’t realize that this was helpful to the police and prosecutor at a later trial because they have already confessed to drinking while driving, now it is just a question of whether they were also impaired by that drinking. Even though they may truly have had something to drink earlier in the evening, but are truly not under the influence, they, nevertheless, are worse off than someone who simply kept their mouth shut and never conceded drinking any alcohol whatsoever.
When you invoke your constitutional right to remain silent, you can’t be vague, unclear or ambiguous. If you say something like, “Gee, I’m not so sure I should talk to you guys” or “I think maybe I might need a lawyer,” that may not be specific enough. Better to clearly state something like you definitely want to exercise your right to remain silent and you, without any doubt, want to speak to an attorney first.
At that moment, all questioning must stop. Otherwise, if police do not stop questioning you immediately, they will have violated your Miranda rights. Police can ask you routine questions such as your name, address, date of birth, or social security number without violating your rights, but you cannot be forced to answer even that.
There are times when, after someone invokes their right to remain silent, the police will try to get them to reconsider. They will say such things as “Well, I guess this means you must be guilty. If you haven’t done anything wrong and are innocent, you would probably be talking to us.” Or they might say, ” Oh come on, why spend money on a lawyer? You don’t need one. We just want to ask a few routine questions and then you can probably be on your way” Or they might say, “Obviously, you must have something to hide. Otherwise you wouldn’t need to get a lawyer.” That is not true. As I said above, even an innocent person can get themselves in trouble by speaking to the police if they nervously phrase something the wrong way or say things in a way that could be misinterpreted. Do not allow yourself to be intimidated into giving up your right to remain silent or to consult an attorney.