The Miranda Warning Is Not What You Think

TV and movies get Miranda wrong all the time. Chances are you have watched some show where as the cops are slapping the handcuffs on a suspect, they start the familiar,  “You have the right to remain silent. Anything you say may be used against you in the court of law…” Yet this scene hardly ever plays out like that in the real world – and that is perfectly legal.

Unless you are a lawyer, there is a good chance what you believe to be true about the so-called “Miranda Warning” is wrong. The most common question I hear from clients goes something like this: “The officer never read me my Miranda Rights, does that mean the case can be thrown out?” The short answer is: No.

First, let’s start by giving a little background on the Miranda warnings. I use the term “warnings,” not “rights,” because the rights are actually from the United States Constitution, not from the Miranda case. Miranda came from a 1966 United States Supreme Court case called Miranda v. Arizona. In that case, the Supreme Court said law enforcement must inform a suspect of their Constitutional rights prior to a custodial interrogation if they want to use the suspect’s statements against them in court. This ruling resulted in the standard warnings we hear cops repeat time and time again in our favorite crime dramas.

Where TV gets it wrong is when Miranda is required. Cops rarely read Miranda as they are slapping on the handcuffs. The reason for that is because Miranda is only required when two conditions are met:

  1. The suspect is in custody, and

  2. The cops are asking the suspect questions designed to get the suspect to give statements that could be used to incriminate the suspect.

If both of those conditions are not present, Miranda is not required. A suspect does not need to be under arrest to be in custody. Custody occurs when an individuals’ freedom of movement is restricted, such as when they are placed in the back of a squad car or in an interrogation room. Likewise, just because someone is in custody, does not mean the cops are asking questions designed to elicit answers that will incriminate that person.

Cops frequently do not read the Miranda warnings while arresting someone because they have no intention of asking the defendant any questions. Often times law enforcement will ask the incriminating questions early on in their contact with a suspect, before the suspect is in custody, so they do not need to read the Miranda warnings.

What happens if the cop does not read Miranda?

If a defendant was in custody, interrogated, and not read the Miranda warning prior to the interrogation, then the defendant’s statements cannot be used against him in court. However, that does not mean his case will automatically be thrown out. It simply means those statements made during the custodial interrogations cannot be used in court. If the prosecutor has enough evidence to proceed without the defendant’s statements, the case will continue. All of the other evidence gathered against the defendant will still be admissible.

If you ever find yourself in a situation where you are confronted by law enforcement, remember that the police do not have to read you Miranda. Also remember that you always have the right to remain silent, and you (almost) always have the right to call an attorney regardless of whether or not the officer has read the Miranda warnings.