With the popularity of crime dramas on television, most Americans have heard the Miranda warnings, which law enforcement officers must give before you are taken into custody for interrogation by any U.S. local, state or federal government authority:
• 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 talk to a lawyer and have your lawyer present with you while you are being questioned.
• If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish.
• If you give up your right to remain silent, and later wish to stop answering questions, no further questions will be asked.
While we have all heard them, comparatively few of us truly understand the impact of the 1966 United States Supreme Court decision in Miranda v. Arizona, 384 U.S. 436 (1966).
Q: How do I know if I am in custody?
A: Circumstances vary, but generally, if a reasonable person does not feel free to leave the presence of governmental law enforcement, then that person is said to be “in custody.” If you are in custody, you must be informed of your Miranda rights, and agree to waive those rights, before authorities may ask you any questions.
Q: What happens if I waive my Miranda rights?
A: Waiving your Miranda rights means that you agree to answer questions, even without a lawyer present. Governmental authorities who routinely arrest and question individuals about alleged criminal acts often provide Miranda waiver forms. People can read their rights and sign the form to say they are giving up their Miranda rights and consenting to questioning while in custody. However, as long as you have heard and understood your Miranda rights, but go ahead and speak with authorities or answer their questions, then your behavior is a valid waiver of those rights, even if you have not signed any paper.
Q: What if I want the authorities to stop questioning me?
A: You cannot simply remain silent if you want authorities to stop questioning you. Instead, you must say, out loud, “I wish to remain silent” or “I am requesting legal counsel.” Then, authorities must immediately stop questioning you while you are in custody.
Q: Is there any circumstance where police don’t have to give the Miranda warnings?
A: Yes. There is a rarely-used exception that lets authorities take a suspect into custody without reading the Miranda rights when there is a risk to the public’s safety. This exception made headlines after Boston Marathon bombing suspect Dzhokhar Tsarnaev was apprehended.
Q: If I say I want to remain silent, does my right to remain silent last forever?
A: No. Even if you are in jail or in police custody, the police can question you again after 14 days. Also, if, for example, you are arrested, remain silent, are released, and then are arrested a few days later, you need to re-assert your right to remain silent. Also, if you invoke your rights but then just keep talking, you lose that protection.
Q: What if I am in government custody and authorities are interrogating me, but haven’t read me my rights?
A: Assuming there was no public safety or other exception, your attorney will file a “motion to suppress” any incriminating statements you may have made to the authorities. In this motion, your attorney will ask the court to rule that the prosecutor may not use any of your statements at your trial because that would violate your rights. If the prosecutor has a very weak case and little evidence against you other than your statement, such a ruling may convince the prosecutor to dismiss your case or offer you a favorable plea agreement. Or, the exclusion of your statement may mean you will not be convicted. However, if you are caught by seven witnesses and 12 video cameras showing you swinging out of a bank vault with cash that is not yours, the outcome of government’s case against you is very unlikely to be affected by any failure to inform you of your rights.
This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by attorney Aaron T. Baker, a solo practitioner in Willoughby, Ohio, and Matthew C. Bangerter, a solo practitioner in Mentor, Ohio.