One thing I hear with regularity is “Mr. Lee, they didn’t Mirandize me.  That means they have to let me go, right?”  Unfortunately, the answer to that question is not “yes” as often as some would think.  Here’s why.

In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court of the United States ruled that the Fifth Amendment of the United States’ Constitution (which states in part that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself”) requires that anytime someone is in police custody and accused of a crime, that person must be informed of his/her Miranda Rights and must validly waive these Rights prior to interrogation by the police.  There is not a verbatim recitation that the police must follow, but rather they can use any variation of words that clearly informs the accused that (s)he has the right to remain silent, that anything (s)he says can be used against them in court, that (s)he has the right to an attorney, and that if (s)he cannot afford one, one will be appointed for him/her if (s)he like.

Generally, testimony and evidence obtained via a violation of one’s Miranda rights are inadmissible at trial.  And if the entire case (or a sufficient enough portion of the case) the Government has against an accused is a confession or other testimony unconstitutionally obtained through a violation of the accused’s Miranda rights, then the answer to “Mr. Lee, they didn’t Mirandize me, that means they have to let me go, right?” might be “yes.”  However, as is far more often the case, the Government has other evidence against the accused, and/or they have properly observed one’s Miranda rights and did not Mirandize someone because it was not required in that particular situation (the person was not in custody, not yet suspected of a crime, was not being interrogated but was instead randomly blurting out confessions to crimes, etc.).  However, violations of Miranda rights do occur, and so if you believe your Miranda rights were violated, you should consult with an attorney who practices Criminal Law in your jurisdiction immediately.

Also, it should be emphasized that two of the Miranda rights are a right to an attorney and, if the individual cannot afford an attorney, to have one appointed if (s)he like. The Supreme Court of the United States has ruled that this means  once a detainee has invoked his/her Miranda right to counsel, all questioning must cease until counsel is present unless the detainee initiates further questioning, Edwards v. Arizona, 451 U.S. 477 (1981), as long as the invocation of the Miranda right to counsel was both unambiguous and specific enough that a reasonable officer in that situation would understand that the detainee is invoking his/her Miranda right to counsel.  Davis v. United States, 512 U.S. 452 (1994) and McNeil v. Wisconsin, 501 U.S. 171 (1991).

One could say “When in doubt, ask for your attorney.”  I hope this post has proven informative / useful, and until next time I remain

Very Truly Yours,

– Nick Lee –


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