What You Don’t Know About Miranda Can Land You in Prison!
By Joey N. Hamby, Esq.
Generally, everyday citizens haven’t heard of cases such as Terry, Franks, or Batson. But unless you have been living under a rock for the last 60 years, you have heard of Ernesto Miranda and his case.
In almost every movie, TV show, or news story about crime, police, and the law, you have heard the (in)famous Miranda warnings. In 1966, the Supreme Court of the United States originated these warnings in the landmark case, Miranda v. Arizona1. Every police officer is taught to recite them to a suspect in custody prior to questioning.
Countless real and movie cops have recited the Miranda warnings:
- 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 appointed for you.
- Do you understand these rights I just read to you?2
Our Miranda rights are based on the Bill of Rights and are part of our Constitution. That creates a strong, fundamental protection of our individual rights, but it leaves our rights open to judicial changes. Over the years, state and federal courts have defined, redefined, revised, strengthened, or weakened, those rights.3
Like many basic concepts, people can have very different expectations based on those four simple statements. Those misunderstandings can get you charged, convicted, and sentenced to prison! You must understand what these warnings really mean after 60 years of court interpretations.
But before diving into the statements, there are some very common misunderstandings about Miranda rights. Many people mistakenly believe that Miranda covers any and every interaction with police. That is wrong. Miranda only applies when two specific situations occur, a) Custody, and b) Interrogation.4
If either one of those is missing, then Miranda does not apply. A police officer can approach you on the sidewalk and question you about a crime. But if you are free to walk away, then the Miranda warnings don’t have to be recited. On the other hand, you can be arrested and held in jail, but if you are never questioned, then the Miranda warnings don’t have to be read.
Another common misperception is that a Miranda violation will result in a dismissal of a case. That is possible, but it is rare. The courts have held that the correct remedy for a Miranda violation is the preclusion of the statement, not generally the dismissal of the case.5
Turning to the actual Miranda statements, you need to know what these statements actually mean. It is very difficult to take very important, complex, legal issues and summarize them in very short, simple statements. Our courts are constantly reviewing and revising the actual meaning, but the words of the Miranda warnings have not been updated.
The Miranda Warnings
1. You Have the Right To Remain Silent.
This statement remains fundamentally unchanged, but you need to understand when and how it applies.
Understand, this means that you cannot be forced to talk to the police if you are facing custodial interrogation. In other words, this applies if the police have taken you “into custody” and you are being questioned about a topic that can incriminate you.
At the trial court level, there is a constant battle over whether a suspect is “under arrest,” “in custody,” “detained,” “free to leave,” or something else. Most citizens are surprised to learn that even though they have been handcuffed and held in a police car or police station for hours, a prosecutor will argue they were not “in custody” for purposes of Miranda rights. They will be even more surprised to hear a court agree with that argument.
Also understand that you don’t have to wait for an officer to read your Miranda rights to be able to invoke them. You can invoke your rights immediately, without waiting for the warnings. But, once an officer reads them to you, that is a huge red flag telling you to invoke your rights!
Another common misunderstanding is the belief that you can get the protection of the Miranda rights by simply remaining silent. That is wrong! You must affirmatively state, in clear, unequivocal words, that you are invoking your right to remain silent. I have had multiple cases where suspects never told the officers that they were invoking their rights; they simply quit talking. That is not enough to trigger the constitutional protections of Miranda rights. It is also not enough to make statements such as, “I think I need a lawyer” or “I might need a lawyer” or to ask the police, “do you think I need a lawyer?”
Many attorneys recommend that their clients give a statement that they are invoking their right to remain silent under the Fifth Amendment to the US Constitution, or a similar statement. We don’t think that is the wrong thing to say, but we recognize that it is difficult to remember specific words when you are under tremendous stress. We like to keep it simple. Our recommendation is to simply, clearly state, “I am not talking with you. I want my lawyer.”
This is a clear and unequivocal statement to the police that you are invoking your Constitutional rights.
In clear, concise language, this instruction should read:
“You have the right to remain silent, but you must make a direct and clear statement to the officer that you want to remain silent if you want the protections of that right.”
2. Anything You Say Can and Will Be Used Against You in a Court of Law.
This statement still remains true, but it has been expanded in ways that most people are not aware of and would not anticipate. Yes, if you say something, that statement can be used against you in court. But it is now much more than that. The way you say something, what you don’t say, your physical actions, your facial expressions, whether you are crying or not, emotional or not, are all things that courts have allowed police officers to testify about. The fact that you simply said nothing in the face of horrible allegations or information, can be used against you if you have not invoked your rights.
In other words, anything you say or do, some things you don’t say or do, the way you say or do things, the way you don’t say or do things, your reactions, your lack of reactions, your demeanor, your body language, your behavior of any type, can and will be used against you.
In clear, concise language, this instruction should read:
“If you do not invoke your rights, any of your words, actions, or behaviors, including your lack of words, actions, or behaviors, can be used to make you look guilty in court.”
3. You Have the Right to an Attorney.
Maybe! I have had cases where my client heard that statement and replied, “yes, I’d like my attorney” and just got a blank stare from the officers. Invoking your right to an attorney does not mean that police find an attorney for you and bring that attorney to your location. Generally, the best-case scenario is that you get a phone and a phone book or access to your smart phone so you can try to look up an attorney.
Then you have to reach an attorney, whether it’s the middle of the day or the middle of the night, hire the attorney, and then have a private and privileged call with the attorney. It may not be possible to get past all those problems.
So what does your right to an attorney actually give you in that moment? The legal ability to STOP TALKING without that being used against you. You can call timeout until you get to speak with an attorney.
Use that right! Tell the police, “Officer, I am not talking with you” then say, “I want my attorney.” Your invocation of this right cannot be used against you in court. If you demand your right to an attorney, that fact is not going to be mentioned in front of a jury. It is highly improper for a police officer, a prosecutor, or a judge to even comment on the fact that someone demanded an attorney. In any court I can think of, that would be serious misconduct and could result in a mistrial, possibly a dismissal.
In clear, concise language, this instruction should read:
“You have the right to speak with an attorney before you talk with police officers. If you say that you want to consult with an attorney before talking with the police, then all questioning must stop, and that fact cannot be used against you in court.”
4. If You Cannot Afford an Attorney, One Will Be Appointed for You.
Again, maybe! First understand that there are many criminal cases where the courts have decided that you are not entitled to an appointed attorney. Assuming your case is the more serious type of criminal case where you are going to receive an appointed attorney, you must understand that in almost no case will that happen at the moment you need it most, when police officers are reading the rights to you. Many public defense agencies cannot provide any type of representation, even in the most serious cases, unless a person has been charged with a crime. That means that when you are in custody, being pressured to answer questions, you can’t get an appointed attorney. If you cave under pressure, answer questions and then get charged, your appointed attorney will be happy to tell you that you should have kept your mouth shut until you spoke with an attorney.
In clear, concise language, this instruction should read:
“If you cannot afford an attorney, in some cases, you will have one appointed once you are charged with a crime. But not right now.”
5. The Waiver
You can give up your Constitutional rights. In court this is called a waiver, which is an “intentional or voluntary relinquishment of a known right, or such conduct as warrants an inference of the relinquishment of such right . . .”6
This is a very big deal! First, this means that you cannot waive a right that you did not know existed. That is the whole reason why police officers are required to read the Miranda warnings, so that you cannot claim you did not know your rights.
Second, you cannot waive your rights by accident. A waiver must be something you do intentionally, or at least knowing that you are doing it.
Third, waiving your rights relinquishes your rights by giving them back to the government. Don’t give your rights to the government!
Fourth, you can waive your rights by your acts, without ever telling the officer that you are giving your rights back to the government. If the officer advises you of your rights and then immediately begins questioning you, your rights can be given away if you answer those questions. Some jurisdictions do not require officers to affirmatively ask if you are willing to give up your rights and talk with them. Just answering their questions is going to be a waiver by your actions.
We believe that you should be correctly advised about your rights and correctly asked if you were willing to give away your rights.
In clear, concise language, this instruction should read:
“Do you understand the rights that I just read to you and are you willing to give up those rights and answer my questions or do you want to talk with an attorney before answering my questions?”
The New Miranda
Putting these updated statements together, here is what we have:
- You have the right to remain silent, but you must make a direct and clear statement to the officer that you want to remain silent if you want the protections of that right.
- If you do not invoke your rights, any of your words, actions, or behaviors, including your lack of words, actions, or behaviors, can be used to make you look guilty in court.
- You have the right to speak with an attorney before you talk with police officers. If you say that you want to consult with an attorney before talking with the police, then all questioning must stop, and that fact cannot be used against you in court.
- If you cannot afford an attorney, in some cases, you will have one appointed once you are charged with a crime. But not right now.
- Do you understand the rights that I just read to you and are you willing to give up those rights and answer my questions, or do you want to talk with an attorney before answering my questions?
If you compare these updated, and legally accurate descriptions of your Constitutional Miranda rights, you can see how they give a very different understanding than the current version that is recited to people across this country. Having an accurate understanding of your Miranda rights is absolutely critical to defending yourself in court and staying out of prison. You cannot knowingly, voluntarily, and intelligently choose to invoke a right or to waive a right if you do not understand it.
Just Shut Up!
Most importantly, please understand that the default position should always be to use your constitutional rights to just shut up. If you ever find yourself in that horrible situation, where you are being questioned by law enforcement, understand that you have every right to keep repeating, “I am not talking with you, I want my attorney,” no matter how many times they question you. You will make your life, and your case, much easier to defend. And your defense attorney will thank you!
About the Author
Criminal Defense Attorney Joey N. Hamby
Joey Hamby is a senior criminal defense attorney, a certified specialist in criminal law, and an author on The Attorneys On Retainer blogs. With decades of experience in self-defense cases, he is dedicated to protecting the rights and freedoms of responsible gun owners.
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