The Miranda rule requires the police to tell a criminal suspect who is under arrest and before questioning them that they have certain rights. The police must communicate the following to a person who has been arrested:
- Right to Remain Silent: They have a right to remain silent. This means they do not have to talk to the police. If the police ask them questions, they can respond by saying that they want to talk to an attorney and want to assert their Miranda right to remain silent;
- Use of What Is Said: Anything they say can and will be used against them in a court of law. This means that if a suspect says anything to law enforcement, it can be used later in a criminal trial against them, i.e., as evidence that they committed a crime;
- Right to an Attorney: They have a right to be represented by a criminal defense attorney;
Right to an Attorney If They Cannot Afford One: They have a right to the advice of an attorney, and if they cannot afford one, a court will appoint one for the person at the expense of the government. This means the government pays the attorney if the arrested person cannot afford one;
- Affirmation of Understanding: At the end of the warning statement, law enforcement asks if the person to whom the Miranda rights have been communicated understands the rights and then whether they wish to speak to the law enforcement representative. In some states, the representative of law enforcement may ask the suspect to sign a declaration to the effect that the Miranda warning has been read to them and they understand it.
If the Miranda warning is not given to a person who is under arrest and in police custody and the person makes statements to the police in response to questioning, then the statements cannot be used by the prosecution at the person’s trial to prove their guilt. However, courts have allowed certain other uses, such as impeaching the defendant’s credibility at trial.
This means that if the defendant takes the stand to testify in their own defense and denies committing the crime, the prosecution could introduce a statement the defendant made admitting guilt, even if this admission was made after law enforcement had arrested the defendant and questioned them without giving the defendant the Miranda warning.
This was the ruling of the court in the case of Harris v. New York, 401 U.S. 222 (1971), in which the court held that the prosecution could use statements that law enforcement collected in violation of his Miranda rights to impeach the defendant’s testimony when he voluntarily took the stand at his trial and denied committing the crime.
Then, in Oregon v. Hass, 420 U.S. 714 (1975), the Court allowed the prosecution to use a statement made by the defendant for impeachment. The defendant had made the statement after police had ignored his request for an attorney after he was given the Miranda warning.
Per recent court rulings, if a person wishes to claim their right to remain silent, they should say so expressly to the representatives of law enforcement who want to talk to them or ask them questions.
The U.S. Supreme Court has held that law enforcement must stop questioning an arrestee once that arrestee claims that they wish to remain silent and speak to an attorney. However, the suspect must speak up and state that they are asserting their right to remain silent. They should tell the police officer that they have a right to an attorney and want to speak to an attorney.
Once an arrestee has informed police officers that they want to seek the advice of an attorney, the police should discontinue any questioning of them until after they have consulted with their attorney. And the arrestee should remain silent, even if the police continue their questioning..
In order to claim their Miranda right, an arrested person should say something to the effect of, “I do not wish to say anything. I want to talk to an attorney.” Or, “I am claiming my right to remain silent and want to speak with an attorney.” Or, “I have nothing to say until I speak to my attorney.”
Once a person has made the necessary statement to an officer, then they should stop talking. The arrested person should consult with the attorney who appears to represent them and listen to the attorney’s advice.
It might not be sufficient to claim the 5th Amendment right to remain silent simply to say nothing in response to questioning by the police. So, rather than just remaining silent, a person who is questioned by the police should make one of the statements suggested above and then remain silent.
Additionally, if an arrestee receives their Miranda warning and waives it “knowingly and voluntarily,” police officers may continue questioning the arrestee unless the suspect clearly asserts their right to remain silent. Again, any statement that an arrestee makes “knowingly and voluntarily” after receiving their Miranda warning may be used by the prosecution at a trial to prove the defendant’s guilt.
What’s the Right to Remain Silent?
The right to remain silent comes from the 5th Amendment to the U.S. Constitution, which states as follows, “No person shall…be compelled in any criminal case to be a witness against himself,….”
Court opinions have interpreted this to mean that a criminal suspect who is under arrest must be given the Miranda warning by law enforcement before representatives of law enforcement can question the suspect. If the warning is not made and the arrestee makes statements to the police, later at trial, the prosecution cannot use the statements for the purpose of proving the defendant’s guilt. There are, however, other acceptable uses of the statement that can be made, e.g., to impeach the defendant if they choose to testify at their trial.
In addition to the confession itself, any other evidence that the police obtain as a result of the involuntary confession cannot be admitted into evidence at trial unless the prosecution can prove that the evidence was found independently of the inadmissible confession.
If the defendant challenges the admissibility of other evidence on the grounds that it was only discovered because of an inadmissible confession, the court must hold what is called a “Kastigar hearing.” At this hearing, the prosecution must prove that the evidence was found independently of the inadmissible confession. If the prosecution cannot prove that the evidence was obtained through legitimate sources independently of the inadmissible confession, the evidence cannot be used.
One exception to the admissibility of an involuntary confession comes about if the prosecution offers the defendant immunity from prosecution. In that case, the statement can be used, or a defendant can be compelled to testify in court.
Another exception is known as the “public-safety” exception to the Miranda rule. This exception allows a statement that would otherwise be inadmissible to be used at trial. If the police requested information from the defendant in order to protect the public in an emergency situation, it could be admitted into evidence. This is allowed even if the police did not give the defendant the Miranda warning.
If a suspect begins speaking after receiving the Miranda warning, they are usually considered to have waived or forfeited their right to remain silent. This means that the statement that they made of their own volition can then be used during trial to prove their guilt and for any other purpose, e.g., at a sentencing hearing.
What Is Police Questioning?
The Miranda rule only applies to police questioning that takes place after a person has been arrested for committing a crime. This is any type of interrogation that is done during an official detention or in relation to an arrest. The interrogation must be aimed at obtaining information for the purpose of convicting the defendant of a crime, i.e., that can be used in a trial, such as a confession.
So questions asked by the police in some circumstances might not require a Miranda warning. For example, all people who are arrested undergo booking procedures at a jail facility, and standard questions asked during booking procedures are not considered to be police interrogations. The detained person can answer these questions without fear that the answers will be used against them at a trial.
Two recent court cases illustrate situations when a person’s silence was used against them without violating the Miranda rule. In both cases, the defendant did not expressly assert their right to remain silent.
The Supreme Court’s decision in Salinas v. Texas, 570 U.S. 178 (2013), involved a situation in which the defendant interacted with the police voluntarily during a murder investigation. The defendant was not under arrest when a supposedly incriminating event took place. A police officer asked the defendant about his possible involvement in the murder, and, as the officer testified, the defendant became very quiet, and his entire demeanor changed.
The prosecution offered the defendant’s silence and behavioral change as evidence that incriminated him. The court held that police did not violate the defendant’s rights against self-incrimination, in part because the defendant had not expressly claimed his Fifth Amendment right to remain silent at the time.
The California Supreme Court reached a similar conclusion in 2014, in the case of People v. Tom, 139 Cal. Rptr. 3d 71 (2014), which involved evidence of a defendant’s silence after an alleged drunk-driving accident. Specifically, officers present at the scene of the accident noted that the defendant “expressed no concern about the well-being of the other people involved in the collision.”
This alleged lack of expression of concern occurred after the defendant’s arrest but before he received Miranda warnings. So the defendant’s silence should have been inadmissible. However, the court ruled that an officer could testify about the defendant’s apparent lack of concern, because the defendant did not expressly assert his right to remain silent. And for that reason, the court said, his rights were not violated by the officer’s testimony.
Do I Need a Lawyer for Help with Police Custody Issues?
As you can see, application of the Miranda rule is not so straightforward. That is why it is important to consult a criminal defense lawyer as soon as you learn that the police believe you have committed a crime.
A qualified lawyer can explain your rights to you. Your lawyer can help represent you as soon as police begin investigating any crime in which you might have been involved. So, as soon as you learn that you are a suspect in a criminal matter, you need to consult an experienced criminal defense lawyer.