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Are Miranda rights required during an arrest?

What are your constitutional rights when you are placed under arrest?  Is a police officer required to read you Miranda rights when he makes an arrest? This is one of the most common questions I get from my criminal defense clients. There is a very common misconception among the general public, probably promoted by television, that a police officer is required to advise an arrestee of his Miranda rights. Many of my clients incorrectly believe that if the police did not read them Miranda rights that their case must be dismissed. However, this is not the case.

Miranda is really an evidence issue, not an absolute procedural requirement placed on the police for every arrest. Specifically, Miranda rights are only relevant to whether an incriminating statement made by a criminal defendant to the police may be used as evidence against him in a trial. In Miranda v. Arizona, the U.S. Supreme Court ruled that a custodial statement made by a suspect in response to interrogation by the police may only be admissible against the suspect at a criminal trial if the police first advised him of his rights as the court defined them in Miranda. These rights are: The right to remain silent; anything you say may be used against you in court; the right to have an attorney present before making a statement and; the right to have an attorney provided free of charge if you cannot afford one.

Two elements must be present for the police to be required to advise a suspect of Miranda rights before they can use an incriminating statement in court: 1) Custody and 2) Interrogation. Basically, custody means the suspect must be under arrest, although a formal arrest is not necessarily required. A person may be deemed to be in custody even without a formal arrest if a reasonable person would not have felt free to leave as a result of police actions or words. Interrogation means the statement must be the result of questioning by the police. An unsolicited blurt out does not require Miranda. Actions by the police that were likely to illicit an incriminating response from a suspect may be deemed to be interrogation by the court.

It is almost always a bad idea to make any statement to the police when you may be the subject of a criminal investigation. This advice applies even if you are innocent. Even a denial of responsibility may be used against you in court in ways that you cannot anticipate. I have represented many innocent defendants in criminal cases. It is highly unlikely that you will convince the police that you are innocent once the police get to the stage of questioning you. The police already believe you are guilty. You will not be persuasive enough to convince the police of your innocence. The misguided belief that you can convince the police not to charge you because you are innocent is a pipe-dream that has sunk many a defendant at trial. Even though you deny general criminal liability, your statement may help the government to prove certain elements of the case against you. The police are trained to get suspects to admit any element of the charge. A perfect example is a rape case. Rape requires sex and force. Many suspects will admit to the sex but claim it was a consensual act. This statement makes it easy for the State to prove half its case and eliminates half of the available defenses.

Every person has the constitutional right to refuse to make a statement to the police under the 5th Amendment. The jury cannot be told that you refused to make a statement. Your silence cannot be used against you in court. Don't talk to the police and save your statement for the jury. The jury will usually have a more open mind and will be more receptive than the police to your claims of innocence. Moreover, your testimony will be presented to the jury with the skilled guidance of a criminal defense attorney to maximize its persuasive effect. By not making a statement to the police you also avoid the risk of making inconsistent statements that the jury may use to convict you.

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