THE MIRANDA WARNING: What you don’t learn from “Law & Order”

The phrase is so familiar to us all: “You have the right to remain silent.” Most are even able to repeat the remaining rights without much thought or hesitation. The Miranda Warning has been uttered by countless law enforcement officers and television actors for going on five decades. But what is not so clear to those not educated in the finer points of the law is just when the warning must be given by the police. Now you too will be able to differentiate between fact and fiction behind the Miranda Warning.

FALSE: The police must advise every arrested person of the Miranda Warning. THE TRUTH: The police are never required to advise anyone of the Miranda rights. If a police officer arrests a person and never speaks even one sentence of the warning, that arrest is still a good arrest. The Miranda Warning is not mandatory. There are two magic words associated with the Miranda Warning: custodial interrogation. Custodial has been interpreted to mean that a reasonable person would not feel free to leave a particular situation or setting. If a police officer is conducting an investigation, and tells a person that he or she is not free to leave, then for purposes of the Miranda Warning, that person is being detained; or to use the key word, in custody. An interrogation occurs when a person is being asked questions which are likely to illicit an incriminating response. The question “what is your address?” is most likely not interrogatory. However, “did you shoot the victim?” may result in an incriminating response, and thus would be considered part of an interrogation. Once a police officer is engaged in a custodial interrogation of a suspect, the officer must advise that person of the Miranda Warning, right? WRONG. Only if the officer intends for that person’s statements to be used as evidence against him or her must the officer recite the warning. If the officer obtains information that is incriminating from the suspect, and the warning was never spoken prior to those incriminating statements, then the statements are excluded from the case-in-chief at the trial. There is no other recourse. The statements still may even be used to impeach that person on cross-examination. As you can see, the Miranda Warning is not as powerful as many believe it to be. It is very narrowly applied and does not always guarantee that incriminating statements will never be heard in a court of law. So if you are arrested, do not expect to be advised of your Miranda rights. You will likely be disappointed.


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