You Have the Right to Remain Silent

I hear it all the time: “The police didn’t read me my rights, so we can get the case dismissed, right?”  I understand where people get that idea—television shows certainly make it seem that straightforward.  But my answer is usually, “not exactly.”  Real life, after all, is not like TV.

It all starts with a 1966 case called “Miranda v. Arizona.”  In that case, the Supreme Court held that before law enforcement officers may interrogate somebody who is in custody, they must first inform the suspect of his or her Constitutional rights to remain silent and to consult with an attorney.  The right to remain silent is guaranteed to us by the Fifth Amendment to the Constitution.  The right to be assisted by an attorney in a criminal case is guaranteed to us by the Sixth Amendment.  When police read somebody their “Miranda rights,” they are describing these important Constitutional guarantees, and it goes something like this: “You have the right to be 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 to you.”

If, after hearing and understanding this warning, a suspect chooses to speak to a law enforcement officer, his or her responses may be admissible in court, and anything the police learn because of those responses may also be admissible in court.  In other words, that information “can be used against you in a court of law.”

But if the police have not read you your Miranda rights before they interrogate you, does that mean charges must be dismissed?  No. What the Supreme Court said in Miranda is that if you are in custody and the police interrogate you without first reading you your rights, then nothing you say to them during that interrogation can be used against you in a trial.

A custodial interrogation does not have to mean that you are in handcuffs or being held in an interview room; a custodial interrogation can occur anywhere, and at any time, provided that you, a reasonable person, feel you are not free to leave.  If you are not in custody—if you know that you are free to leave at any time—then the police do not have to read you your rights.  Or if they do not interrogate you—if, say, they don’t ask you any questions, but you just blurt “I did it!” out of the blue—then they do not have to read your rights in order to use your statement against you.

And even if a judge decides that your statements cannot be used against you in court because you were in custody and the police did not read you your rights, the state may still have enough admissible evidence to get a conviction.  If several eyewitnesses saw you commit a crime, they probably don’t need your statement anyway.

You always have your Constitutional rights, even if the police don’t read them to you.  You always have the right to remain silent.  You can always decline to answer questions posed by law enforcement, or say that you would like to have your lawyer present.  If you are stopped, you do not have an obligation to tell a police officer that you had a glass of wine with dinner or that you are returning home from a party.  You do have an obligation to be courteous and do your part to keep everyone safe, but you do not need to help build a case against you.  And if you do find yourself answering questions, you can invoke your Constitutional rights at any time, even if you’ve already begun cooperating.

Bottom line:  if you are forthcoming and provide information to the police, remember that you don’t have a get-out-of-jail free card just because the officer did not read you your rights.  But, depending on the circumstances, you may be able to keep incriminating statements that you provided to law enforcement from being used against you in a court of law.

As published in the Portsmouth Herald.