What's the deal with Miranda rights anyways?

We all know that familiar scene in the movies and TV shows. The dramatic placement of the arms behind the back. The clink of the handcuffs. As the scene fades away, the officer proudly recites those familiar words, “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.”

Law and Order, anyone?

Because of these scenes, many believe that the law requires officers to tell these rights to every single person they arrest. I often have clients tell me they were never given their Miranda rights as if that’s the end of their case and they’re off the hook now.

I want everyone, however, to remember two words: custodial interrogation. Cops only need to give you your Miranda rights when you are in custody[1] and they plan to question you. This is the only situation where Miranda rights are relevant.

In many situations, for a variety of reasons, police may never intend to question you. Therefore, they will not give you your Miranda rights.

When cops do arrest and question you without giving you your Miranda rights, it does not mean your case is automatically dismissed. Instead, any statements you made after your arrest should (hopefully) be thrown out. For example, imagine Bob is arrested for murder. He is taken to the police station and questioned without being given his Miranda rights. He confesses to the police. The prosecutor can still put Bob on trial for murder. His confession, however, should NOT come into evidence during his trial.[2]

In conclusion, not everyone arrested is entitled to Miranda rights. The police only have to give Miranda rights to those people that they intend to question. The failure to give Miranda rights does not automatically result in your case being thrown out. Always talk to your lawyer to understand how and if Miranda rights might play a role in your case.

Further in conclusion, please know that you do not EVER have to talk to police upon your arrest. You DO have the right to an attorney. You DO have the right to be silent. You must, however, VERY CLEARLY state this right to police. I recommend, for example, saying explicitly “I want to exercise my constitutional right to an attorney” or “I want to exercise my constitutional right to be silent.”

And, side note, don’t add “dog” to the end. See this article here about a case where the suspect said “give me a lawyer dog.” The Louisiana Supreme Court ruled that this reference to a “lawyer dog” was too confusing for a reasonable officer to understand that the suspect wanted to exercise his right to an attorney. As the article says, “It’s not clear how many lawyer dogs there are in Louisiana, and whether any would have been available to represent the human suspect in this case, other than to give the standard admonition in such circumstances to simply stop talking.”

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[1] Custody can mean many different things. Custody general means you’ve been arrested and are being taken to jail or the police station. However, the courts have also found custody in other situations, even when cops are in your home. The general rule of thumb is that you are in custody when you are not free to leave (just like you wouldn’t be free to leave if you were arrested).

[2] If Bob gets on the stand, however, and proclaims that he is innocent and doesn’t know anything about the murder, prosecutors CAN impeach Bob with his prior statements. In other words, they can make him seem like a liar by bringing up his prior confession.