Thursday, February 13, 2014

When Do The Police Need To Read Miranda Warnings?

They Never Read Me My Rights!

…And the police didn’t even bother to read me my Miranda rights!!!  This statement is echoed numerous times thought our office when meeting with clients.  The following is a brief Miranda outline:
 
When does Miranda apply?

Miranda rights apply when a person is in custody and subjected to interrogation. 


 What do you mean “in custody?”

A person is considered to be in custody when, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.   If you are placed under arrest you are “in custody” for Miranda purposes.

However, if there is no formal arrest, the issue becomes a little murky.  When formal arrest is lacking “the court must determine whether [your] freedom of movement was sufficiently curtailed by considering how a reasonable person in [your] position would have understood the situation.”  The court will consider whether the suspect was familiar with his surroundings, the number of police officers present, if the suspect was physically restrained and, importantly, the interview’s duration and character.  Routine traffic stops typically do not invoke Miranda safeguards.

What do you mean by “interrogation?”

Interrogation is asking point-blank questions.  However, interrogation also includes “words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect.”  

For example, you’re stopped for speeding and the police notice a severed head rolling around the inside of your car.  Predictably, you are arrested and hauled down to the police station.   The police read you Miranda rights.  Smartly, you reply that you wish to remain silent and speak to my attorney.  The police officer says “fine,  but if you want to be a man and tell us where the rest of the body parts are so the victim’s family can rest… let us know”   This statement “would be reasonably likely to elicit a response” and is considered improper. Exercising your Fifth Amendment Rights and understanding the Miranda Waning Laws can protect you and allow you time to have your attorney present at time of questioning.

What warnings must be given? 
  • You have the right to remain silent; 
  • Anything you say can and will be used against you in court;
  • You have a right to consult with a lawyer and have that lawyer present during interrogation; 
  • If you cannot afford a lawyer one will be appointed.
What now?
 
If you are facing a situation wherein the police are looking to speak with you, politely decline.  Tell the officer that you are exercising your right to remain silent and you wish to have a lawyer present before proceeding any further.



By Law Office of Shepherd and Osborne





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