If you have every watched a cop or law show you have probably heard police reading a suspect their Miranda rights each time an arrest happened. As entertaining as this always is many people do not know what that means in real life.
What exactly are Miranda rights and what happens if I am not read mine?
Miranda warnings inform people of their constitutional rights to remain silent and to have a lawyer present during police questioning. Police read Miranda rights after detaining someone but before beginning an interrogation (questioning).
· Police must inform arrestees of the following:
· You have the right to remain silent.
· If you do say anything, what you say can be used against you in a court of law.
· You have the right to consult with a lawyer and have that lawyer present during any
questioning.
· If you cannot afford a lawyer, one will be appointed for you if you so desire.
The police don't have to say the warnings in that exact way or order. They just need to convey these rights to an accused person.
What are the Miranda rights?
In 1966, the U.S. Supreme Court held that if you’re held under police custody, you must be advised of your constitutional rights to ensure you understand your right to be free from self-incrimination under the Fifth Amendment. These rights came to be known as your “Miranda rights.” One of the key components here is custody.
There are two primary requirements of Miranda:
· You must be “in custody.”
· You must be subject to interrogation.
It is very important to note that there are certain exceptions that can make a violation of Miranda by police inconsequential.
How do I know if I am “In Custody?”
You’re in custody for the purposes of Miranda if:
· You’ve been formally arrested, or
· Your freedom of movement is being restrained just as much as it would be if you were
being formally arrested.
Here is an easier way to view it. Ask yourself this: Would a reasonable person in the suspect’s position consider himself or herself to be in custody?
The Fifth Amendment provides that no one should be compelled to be a witness against themselves in a criminal case. This has been interpreted to mean that individuals have a right to be free from providing self-incriminating testimony while in custody.
This right against self-incrimination is the foundation of the other Miranda rights (the right to remain silent and the right to an attorney).
How do I know if I’m being interrogated?
The second requirement of Miranda is that you be subject to interrogation.
Interrogation, in this case, means questioning by the police that would elicit incriminating statements. In other words, questioning which is likely to result in someone incriminating himself or herself.
Incriminating oneself means making statements which tend to show you were involved in criminal activity. Individuals often will make statements to the police in situations where they are either not in custody or they are not being interrogated. Without these two factors being met our rights as we know them are not required to be read to us.
Do the police have to wait until I have an attorney present before they question me?
No. It is legal for the police to question you without an attorney present or warning you of your Miranda rights as long as the questioning is merely investigatory and you believe that you are free to go and you have not been formally charged.
You are also free to waive your Miranda rights and voluntarily speak to the police without an attorney present. However, once you ask for an attorney, the police, under the Sixth Amendment of the United States Constitution, are prohibited from asking you any additional questions until your attorney is present.
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Miranda rights and violations can be very complicated and must be handled by an experienced criminal defense attorney. If you believe law enforcement did not read you your Miranda rights when it was required of them to do so contact us today for a free consultation. We have with decades of experience and are happy to help with any of your legal needs. Please contact us by text or phone at (414) 775-7445 or email at laura@jlfwisconsin.com anytime.
*Any articles in the Libra or posted by Jones Law Firm LLC are not legal advice for a particular client or situation. Further no attorney-client relationship is intended or created with this post.*
