Forensic Psychology in Denver, Expert Witness, Colorado Forensic Psychologist


Miranda Rights: What Are They And Why Do They Exist?

Ernesto Miranda, ca. 1964. After prison, he went on to make money selling autographed copies of the Miranda warning until he was stabbed to death in a barroom brawl.

Ernesto Miranda, ca. 1964. After prison, he went on to make money selling autographed copies of the Miranda warning until he was stabbed to death in a barroom brawl.

You have the right to remain silent. Anything you do say can and will be used against you in a court of law.

We have heard those words a million times. On every cop show in the U.S., police officers read suspects their rights as soon as the handcuffs come out.

In real life, it doesn't always work that way.

Also, did you know a proper Miranda warning is more than just the right to remain silent?

In 1966, the US Supreme Court heard the case of Miranda v. Arizona. Ernesto Miranda had been convicted of kidnapping and rape in Arizona, but he argued the confession he gave to police should not have been used to convict him because he was not aware of his Constitutional Rights (specifically, his Fifth Amendment Right against self-incrimination and his Sixth Amendment Right of assistance of counsel). The Court agreed and reversed his conviction.

The State of Arizona retried Mr. Miranda, excluding his confession, during the new trial. He was convicted again and sent to prison. He was paroled in 1972, and he sold autographed copies of the Miranda warning to earn a living. He later died of stab wounds inflicted during a bar fight.

So, what are your rights? When do police need to read them to you? What evidence can be used against you in court? Here are some helpful bits of information:

1. Here is the language from the original Miranda decision in 1966: "The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him."

2. The exact wording of a Miranda warning will differ from state to state. Subsequent legal decisions made it clear that the wording does not need to be the same in every state, as long as the warning covers the Fifth and Sixth Amendment Rights from the 1966 Miranda v. Arizona decision.

3. Most states have changed the word interrogation to questioning. They have also changed the wording indigent to if you cannot afford an attorney.

4. Many states have added language to their Miranda warning explaining that, once you start answering questions, you can exercise your Fifth Amendment Right and stop answering them at any point. Others have added wording explaining you can exercise your rights at any time.

5. Notice the phrase The person in custody from the bolded text above. If you are not in police custody, you do not need to have a Miranda warning read to you. Essentially, if a reasonable person would know he/she is free to leave at any point, he/she is not in police custody when talking to detectives. Just because you are at a police station, it does not always mean you are in custody. When in doubt, ask, "Am I in custody?" or "Am I under arrest?" or "Am I free to leave?"

6. Also, notice the phrase prior to interrogation. The police do not need to read you your rights immediately after they arrest you (i.e. take you into custody). They only need to give you a Miranda warning before they start asking you questions to gather evidence. If you say something incriminating in the police car on the ride to the police station prior to being Mirandized, that information can potentially be used against you and may not be thrown out by the judge.

7. There is a public safety and/or national security exception to the Miranda warning. If the police interrogate you prior to a Miranda warning just to make other arrests easier (if they are looking for accomplices, for example), that information should be thrown out. But, if the police are concerned for the safety of others, they can interrogate you without a Miranda warning. An example of this would be if you have placed bombs all over the city and the police catch you. They will ask you all kinds of questions about where the other bombs are without a Miranda warning in order to keep people from getting hurt. That is legal, and the information you provide can typically be used against you in court.

8. You retain all Constitutional Rights, regardless of whether a police officer reads you a Miranda warning. To say otherwise would be akin to arguing you do not have the right to bear arms until someone reads you the Second Amendment. You always have the right to remain silent and you always have the right to an attorney, regardless of when your Miranda warning is read to you.

9. This is important: If you do not explicitly exercise your Sixth Amendment Right to counsel when in custody, police officers will continue interrogating you. You will not be able to argue to the judge later on that you wanted an attorney and did not want to talk to police so you tried to stay silent, but they finally wore you down after six hours of questioning. That 'worn down' confession will be used against you.

If you specifically tell the police you are not going to talk to them and you are invoking your right to remain silent (Fifth Amendment), they can keep asking you questions. That is totally legal. If you break down later and spill the beans, that information can be used against you.

But, the police should immediately stop asking you questions when you say you want to talk to an attorney. Subsequent case law has made it clear that confessions given after a person invokes his/her Sixth Amendment Right to counsel and has been ignored are not allowed as evidence of wrongdoing (an exception to this would be the aforementioned public safety exception--in the case of the Aurora theater shooter, police continued to interrogate the suspect after he had asked for an attorney on multiple occasions because they were trying to get information about the bomb he had built in his apartment. The judge allowed information from this interrogation to be used as evidence against him).

If you don't explicitly invoke your right to counsel, police can and will question you for hours, even if you do not respond to them.

10. If you sign a Miranda warning form at a police station, you are waiving your Fifth and Sixth Amendment Rights, and the police will interrogate you for as long as it takes them to get useful information. If you do not sign the form, they will probably not ask you questions.

11. If you waive your Miranda rights, you can still invoke them later on. If you sign the form and talk to police for 30 minutes, and then you realize you want an attorney, you can invoke your right to counsel and the police should stop the interrogation.

12. The vast majority of criminal suspects talk to the police, even after having been Mirandized. Even if it is not in their best interest to do so. Although many investigators worry that informing people of their rights will limit the information they get from defendants, that is rare. People talk.