• “I WAS NOT READ MY RIGHTS – SHOULD MY CASE BE DISMISSED?”

“YOU HAVE THE RIGHT TO REMAIN SILENT. ANYTHING YOU SAY COULD AND WOULD BE USED AGAINST YOU IN A COURT OF LAW, IF IN FACT YOU ARE ACTUALLY HEADED TO ONE. YOU HAVE THE RIGHT TO SIGN A CONFESSION. IF YOU ARE UNABLE TO DO SO BECAUSE YOUR HANDS ARE SMASHED WITH HAMMERS, YOU CAN JUST HOLD THE PEN WITH YOUR TEETH AND MAKE A LITTLE “X” OR SOMETHING”

YOUR CASE WILL NOT BE DISMISSED JUST BECAUSE YOUR “MIRANDA” RIGHTS WERE NOT READ! YOU’RE WATCHING TOO MUCH TV!

 The case of Miranda v. Arizona was a landmark decision of the United States Supreme Court, handed down on June 13, 1966, which outlined the rights of individuals in regard to interrogation while in police custody. In particular, it prescribed the admissibility of evidence gained from persons who have not been advised of their rights relating to the 5th and 6th Amendments to the US Constitution.  Essentially, the Court held that if a suspect has not been advised of these rights, prior to being interrogated, than any evidence derived against them in that case cannot be used against them in a court of law. This ruling provides that anything a person says can be used against them, but again, only if the person has been informed of their right to consult with an attorney and of the right against self-incrimination. It must be demonstrated that an individual understood those rights and that he or she also voluntarily waived their rights if a statement was given.  It is of paramount importance to understand that at all times any person reserves the right to remain silent – and should assert that right!  It is also important to understand that the Miranda litany is not required to be given post arrest – it is only required if a person is in custody and is going to be interrogated!  Thus, the lacks of advise after an arrest that does not involve questioning about the events that took place is not a relevant Constitutional issue.

 The right against self-incrimination was already in effect before the Miranda decision, since the Fifth Amendment guarantee has long been in place. But the Miranda decision does clarify and solidify pre-existing Constitutional Rights. In 2004, the Supreme Court also upheld state “Stop and Identify” laws, which do allow police to ask certain standard information, like name, birth date and address, without arresting the person.

The Court did not specify the exact wording the warning should take, but instead provided a set of guidelines, which must be followed. Those guidelines stated:

 “…The person in custody, prior to interrogation, must be clearly informed that he or she has the right to remain silent, and that anything the person says may be used against that person in court; the person must be clearly informed that he or she has the right to consult with an attorney and to have that attorney present during questioning, and that, if he or she is indigent, an attorney will be provided at no cost to represent him or her.” A judge or jury is prohibited from drawing negative inferences from a suspect’s refusal to answer questions.

Any interrogation must be suspended when a suspect invokes their Miranda rights.

The common term “Miranda rights” pays homage to the defendant in the Miranda case, Ernest A. Miranda. Miranda claimed he was convicted of rape and robbery without due process, since he was deprived of the advice of legal counsel. Miranda was also forced to sign a confession, pre-typed and read to him, in which he was made to state that he was making this confession voluntarily, a paper that was put in front of him less than 2 hours after his arrest. The title of this document stated his rights to refrain from self-incrimination, but he was shown to be of limited mental capacity and possessed of only an 8th grade education. He was never advised of his right to remain silent; he was not timely warned that anything he did say could be used against him. The case was an appeal of his conviction to the Supreme Court, since it so clearly violated Fifth Amendment rights against self-incrimination and the right to counsel. The landmark case has entered the popular mindset, and is commonly known, even though it is often completely misunderstood.

Miranda was later retried, and the illegally gained confession was excluded. His conviction was upheld in 1967 on the basis of witnesses and other evidence. He was sentenced to serve 20 to 30 years, and paroled in 1972.

The Fifth Amendment provides that a person does not have to give information that supports any criminal accusations against them. This is also known as the right against self-incrimination. The term “Mirandize,” meaning to read a suspect their rights, has become more commonly known in modern culture because of its routine use in television crime dramas. Citizens commonly believe that the Miranda warning is automatically used in any circumstance involving police detainment. This is not accurate, since the police must warn an individual only when they are subjected to a custodial interrogation (a suspect is considered ‘in custody’ when they are deprived of free movement) in a police station, in a police vehicle, or otherwise detained. Individuals may be arrested without questioning, and need not receive a Miranda warning in that case. If the police change their mind and institute questioning at a later time, then the warning is required.

There is a difference between ‘detention’ and ‘arrest’ — police are not required to put the warning in place until a person is actually arrested for a crime. In that case, it’s important to realize that any statements made during detention and even while an arrest is in progress (before the warning is given) are generally admissible. The Fifth Amendment right against self-incrimination does not prevent police from taking blood without a warrant from individuals suspected of driving under the influence of alcohol, since this kind of inquiry may incriminate the individual but cannot be said to be ‘self-incriminatory.’ In addition, the Miranda rule does not cover such things as giving handwriting, DNA, or voice samples, fingerprints, hair samples or dental impressions, since they do not involve the suspect giving actual testimony against themselves.

It is unclear whether an individual already in jail for one crime is protected by Miranda rights granted in that case, if the person is charged with other crimes while still in custody. Miranda rights should be offered in each and every different case.

Police are often given special training designed to induce persons to waive their Miranda rights. For example, the interrogator may ask specifically if the rights are understood and the individual wishes to talk. The officer may speak at length about the evidence already collected, and then ask the suspect if they wish to talk, with the objective of getting the suspect to talk in order to refute that evidence. Interrogators may employ the tactic of not asking any questions at all, simply to sit down across from the suspect and silently do paperwork, with the unstated intention of inducing the suspect to begin to talk on their own. These deceptive tactics, designed to get around the prohibition of compelling testimony, have been upheld in court as valid and lawful.

For the Miranda rule to apply, six factors must be fulfilled. First, the suspect must actually give testimony; even a non-verbal communication, such as nodding the head ‘yes’ when asked if they committed the crime is construed to be testimony. Such testimony must be elicited in a custodial situation, where the suspect is actually arrested or detained so that their freedom of movement is curtailed. Miranda does not apply to questioning a motorist at the side of the road, or a person briefly detained on the street. A person who voluntarily comes to the police station for questioning is not entitled to the Miranda warning, since they are not under arrest and are free to leave.

The fourth factor requiring Miranda warning requires the evidence collected to be a result of actual interrogation. A statement volunteered by a suspect in custody is not protected by the Miranda ruling. The Supreme Court has defined interrogation to include “any actions that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Confrontations of incriminating evidence therefore also amount to interrogation and should be protected by the Miranda ruling.

However, “unforeseeable results of police words or actions” do not count as interrogation. So routine statements made during the administration of sobriety tests for example would not trigger the need for the Miranda warning. A statement by a possibly impaired driver that he or she ‘wouldn’t be able to walk a straight line or put their finger to their nose if they were sober’ would be considered allowable, if incriminating evidence, and would not be protected under the Miranda ruling. Spontaneous statements by an impaired individual usually come in response to questioning by the investigating officer, and such questions, such as ‘How much have you had to drink?’ ‘Do you know where you are?’ are so typical that most police departments print a list of such questions in their arrest report forms. The question of when the Miranda ruling comes into play is often obscured by this questioning behavior; spontaneous statements and answers to these questions can end up being used as evidence against a DUI suspect.

The fifth condition that must be met in order for the Miranda ruling to be in effect is that the confession or evidence must be gathered by obvious “state-agents” such as police officers. Any confession or evidence gained by interrogation by undercover agents or paid informants doe not violate Miranda, since the suspect has no idea they are being questioned by police. In this case, the requirement that the suspect be in custody is waived. Security guards and private police are not considered “state-agents” unless they are off-duty police officers, since a police officer is always considered “on duty.”

Finally, the sixth condition to trigger Miranda is that the evidence must be offered during a criminal proceeding. That means that the results of the endeavor can lead to punishment. So a commitment hearing, in cases of mental competency, does not trigger Miranda, nor do probation hearings, since no new punishment is being contemplated.

So, if all six conditions are present, evidence given in the absence of the Miranda warning must be suppressed and may not be used to convict an individual of a crime.

This Supreme Court ruling protects individuals from answering questions that will impair their legal defense. The ordinary person’s first instinct, when confronted by police questioning, is to be cooperative and try to show a willingness to be helpful and remain in good standing with the police. While this is a noble stance, saying too much in order to appear cooperative can go against your case should it ever appear in court. It is always best to remain silent (this is your basic right) in responding to questions that might require the assistance of an attorney.

It is important to be forthcoming in answering purely administrative questions, such as name, birth date, and address. It is fine to give answers to questions that have no bearing on your potential case, such as your height and weight, since they will not affect your case and have the effect of making you appear to be helpful and willing to cooperate. The rule of thumb is this: if answering any question could has the potential of helping law enforcement make a case against you, then you should be Mirandized first. Except in the area of administrative questioning, questions that might help law enforcement convict you are best left unanswered.

 Your right to remain silent is yours. USE IT!

By: David Zwanetz, Associate Attorney