You Have the Right to Remain Silent


Your Right to Remain Silent on the Street

It’s probably the most well-known scene in all of crime drama: the reading of Miranda. It usually goes something like this: “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 provided for you.”

After the reading, law enforcement usually asks the suspect to waive all of those rights and talk. You shouldn’t. But commonly, in crime drama anyway, we’ve already seen the guilt of the suspect. Real life isn’t so simple.

So where does the Miranda warning come from?

On March 13, 1963, the Phoenix, Arizona police department arrested Ernesto Arturo Miranda. Police interrogated Ernesto for two hours before he confessed to crimes. Police never advised Ernesto he had the right to an attorney, nor did they tell him he didn’t have to talk. The district court admitted his confession. The jury found him guilty.

Eventually, he appealed to the Supreme Court. The Supreme Court, in a 5-4 decision, stated that police must warn a suspect regarding the above rights before subjecting the suspect to interrogation. Chief Justice Warren based part of his decision on heavy-handed police tactics. We call it the “Miranda Warning” due to the name of the case.

Many of our clients tell us that they were never read their rights. Law enforcement doesn’t have to. Ever, really. The Miranda Warning only applies where a suspect is in custody and subject to interrogation. That means you can be arrested and never read the warning. You can also be interrogated and never read the warning. If you drive enough, you’ve probably been stopped by police. That same officer likely didn’t read you Miranda. The simple reason is that they need not; you weren’t “in custody.”

“In custody” essentially means under arrest, but there are times where a person not under arrest is still considered to be in custody. For example, if you are at the police station and not allowed to leave. (As a side note, politely ask whether you are free to leave. If you are, you should almost definitely leave.) On the other hand, you may be interrogated and free to leave. Miranda wouldn’t apply in that scenario.

What’s the remedy?

Most people are surprised to find that the sole remedy for a Miranda violation is the exclusion of the statements. Confessions often help conviction, but they are still rare. Most of the time, they’re unnecessary.

For example, other evidence, both direct and indirect, may be enough. Direct evidence could be a witness testifying that the witness saw someone walking through a snow-covered yard. Indirect evidence would be the footprints left in the snow. If we also have a broken window, a damaged house, and a missing person, a confession is likely unnecessary to believe a kidnapping occurred. Consider this scene from the movie Fargo. Compare that with Jerry Lundegaard’s (William H. Macy’s character) return home afterward, viewable here. No confession necessary.

So what should you say?

You still don’t want to talk. Instead, give your name. If you’re driving, also give your driver’s license and proof of insurance. Regardless, next ask for a lawyer. Loudly and clearly. Then say that you are invoking your right to remain silent. You might be surprised at how seemingly innocent statements may be later misinterpreted. Your silence is not an admission of guilt. It only says that you want legal advice before you spill your guts. Requesting a lawyer is not an admission of guilt. Many innocent people retain lawyers. Understand, however, you must ask for a lawyer and state you wish to remain silent (as oxymoronic as that sounds).

Why wouldn’t police read you Miranda? Here’s a police training video talking about that subject. Mostly, it notifies a suspect that he or she is under investigation and may be arrested. Many of us watch what we say more closely when we’re under suspicion. An old–but effective–police tactic is to get a suspect talking. Before Miranda, police could use coercive techniques to gain a confession. Torture was outlawed, but many departments ignored certain abuses if they gained results. The Supreme Court didn’t like it. Now, police try to buddy-up to a suspect in order to get them to talk. You’d be surprised at how often law enforcement says “We only want to help you” before you face criminal charges.

If you’re in custody and subject to interrogation, assert your right to a lawyer. Then call us. You’ll be glad you did.