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 an attorney and and have that attorney present with you while you are being questioned.
If you cannot afford to hire an attorney, one will be appointed to represent you at no cost.
You can decide at any time to exercise these rights and not answer any questions or make any statements.
SLG’s criminal defense attorneys are often told by clients that the police did not read them their miranda rights. And this no doubt is true. But you might be surprised to learn that the police don’t have to read you your rights. There is a specific reason why police have to read citizens the Miranda rights (also commonly referred to as Constitutional Rights and Miranda Warnings). This blog discusses what Miranda rights are, when they must be read to a citizen, and what happens if the police fail to or err in reading the Miranda rights.
The Police Officer Didn’t Read Me My Rights. What Are Miranda Rights And Doesn’t The Officer Have To Read Them To Me?
It depends. Miranda warnings are simply warnings to citizens that any statements they make to law enforcement can be used against them. This only applies to statements obtained pursuant to custodial interrogation. So, if there is no custodial interrogation, then the officer doesn’t need to read you Miranda warnings. In other words, if the officer never asks you anything or if the State doesn’t plan on using any statements you made against you, then it is irrelevant whether the officer read you the Miranda warnings. Miranda only comes into play in criminal court when the State is trying to admit statements you made against you as evidence of your guilt. There are many situations where an officer may make an arrest and not ask you any questions. For example, if you have an arrest warrant outstanding and an officer that has nothing to do with the case pulls you over and arrests you on that arrest warrant, the arresting officer will often not ask you any questions. He or she will simply make the arrest. In that case, the officer would not have to read you your Miranda rights because he is not interrogating you.
When Does The Officer Have to Read Me My Miranda Rights?
The officer must read you your Miranda rights before the officer engages in “custodial interrogation.” What is “custodial interrogation?” Well, that term has been interpreted over and over again in various criminal appellate cases in various jurisdictions. That is what lawyers litigate in suppression hearings. Whether you were subject to custodial interrogation is what the judge determines when ruling on a motion to suppress. But the short answer is that when a reasonable person would feel like they can’t stop the questioning or leave voluntarily, then it is probably custodial. Questioning under those circumstances would be termed interrogation. The most extreme example is when a person is suspected of a serious crime, brought down to the station, placed in a dark room with no windows and questioned for hours by an armed detective using a threatening and accusatory tone. However, custodial interrogation can be anywhere. It can be short or it can be long. For example, it could be at the scene of a domestic dispute where an officer is asking everybody questions. It depends on the specific facts and whether a reasonable person would feel compelled to answer under those circumstances. There is no set situation where officers must read a person their rights. It is fact and case specific and determined by a judge at a suppression hearing. So that is why most officers will read Miranda rights whenever they are questioning a potential suspect.
What Happens If the Officer Didn’t Read Me My Rights or If I Didn’t Understand My Rights?
If the prosecutor wants to admit a statement that you made against you, but the officer didn’t read you your Miranda Rights before asking you a question that elicited your statement or the officer didn’t do it correctly, your criminal defense attorney would file a Motion to Suppress the statement. The prosecutor would have the burden to prove that you knowingly and voluntarily waived your right to have an attorney present during questioning and your right to remain silent. In order to do this, the prosecutor will usually call the officer to testify about reading you the Miranda rights, your responses and the circumstances surrounding the reading of the Miranda rights. Your attorney would be able to cross examine the officer, present witnesses of your own, and present evidence. Sometimes, the interview between the accused and the officer is recorded. Sometimes, there is a signed Constitutional rights form. The judge would listen to all of the evidence, make factual findings and then render a decision based on the law in that jurisdiction. If the judge grants to the motion to suppress, the prosecutor would not be able to present that statement to the jury at trial. Depending on the incriminating nature of the statement and the other evidence in the case, a suppressed statement can provide your attorney with leverage in negotiations and can dramatically alter the strength or weakness of the State’s case.
There is also plenty of case law where an officer read the citizen his or her Constitutional rights, but did so incorrectly or did not clarify a question in the citizen’s mind. For example, in one case, an officer read the citizen his Miranda rights. The citizen told the officer, “I can’t afford a lawyer anyway.” The citizen clearly did not understand that an attorney would be appointed to him at no cost if he could not afford one, even after the officer read that right to him. However, instead of clarifying this point, the officer simply continued to question the citizen. The citizen made incriminating statements which the prosecutor admitted at trial and the citizen was convicted. On appeal, the appellate court ruled that the statement should have been suppressed because the officer did not clarify the citizen’s right to have a free lawyer and therefore the prosecutor could not prove that the citizen knowingly and voluntarily waived his Constitutional rights.
WORD TO THE WISE
You have an absolute Constitutional right to remain silent. This means that you do not have to say anything or answer any law enforcement questions when they attempt to question you. However, if you do not invoke your Constitutional rights, they can continue to put pressure on you and ask as many questions as you like. If you tell them, “Respectfully, I’d like a lawyer and I’d like to remain silent,” they can no longer question you. The pressure is off. And they can’t use that against you in court. In other words, they cannot tell the jury that you refused to talk to them or give them your side of the story. Law enforcement officers have been trained to make you think that invoking your Constitutional rights will hurt you. But they are allowed to lie to you. Even if you are 100% innocent, you are bound to make some inconsistent or misinterpreted statement that they will use as an “admission” to build evidence against you. Even if you invoke your rights and remain silent initially, you will still have an opportunity to get your side of the story out through your attorney or with your attorney’s counsel at a later time. Never speak to police about a case where you are a potential suspect without consulting with a criminal defense attorney first.
Jeremy Lasnetski, managing partner at Shorstein, Lasnetski, & Gihon is a Florida Bar Board Certified Criminal Trial Lawyer and has been practicing criminal law in Jacksonville for over 16 years. Mr. Lasnetski received his Bachelor of Arts degree with honors from the University of Florida in 1997 and went on to obtain a law degree and an M.B.A. from the University of Florida in 2001.
After graduation, Mr. Lasnetski accepted a position as a prosecutor at the State Attorney’s Office in Jacksonville. During the next 6 1/2 years as a prosecutor, Mr. Lasnetski tried more than 50 criminal trials, including more than 40 felony trials. He was promoted in 2007 to Division Chief of the Repeat Offender Unit. Mr. Lasnetski was also a full time member of the Homicide Prosecution Team. In 2008, Mr. Lasnetski formed the Law Office of Shorstein & Lasnetski and began defending citizens in criminal court. He represents clients in both State and Federal criminal courts.