Don’t Learn Your Law From Tv: Miranda Rights


“You have the right to remain 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 provided to you.”

You’ve heard it a million times- or you have if you have watched as many Law & Order episodes as I have. But do you really know what these rights mean, when they apply, and how to assert them? That’s the part the cop shows usually don’t get quite right.

Miranda v. Arizona (1966)

Miranda Rights are called the Miranda Rights (instead of, say, the Sullivan Rights) because they come from a particular Supreme Court case (Miranda v. Arizona) which set out the requirement of being informed of those rights. It was the first time that the Fifth Amendment right against self-incrimination had been applied to police interrogations. The whole point behind being read your Miranda rights is to protect you from making a compelled or involuntary confession, because once you are informed of those rights you have to knowingly and voluntarily waive them in order for the police to question you.

Now when does it apply? Only if you are undergoing “custodial interrogation.”

And because no one ever said practicing law was easy, let’s break that down a little:

Custodial – you don’t actually have to be under arrest, but you do have to be detained under police control in a situation where you are not free to leave. If you came in for questioning voluntarily, they’re not holding you, and you do not have to be informed of your Miranda rights before speaking to police. Even being a prisoner or at a traffic stop is not necessarily enough to amount to “custody” for Miranda purposes. But, if you ask, and you’re told that you’re not free to go, consider yourself detained.

Interrogation– the police don’t have to actively be questioning you, but they do have to be trying to elicit a response from you. None of that old let’s just have this seemingly innocent conversation in front of the suspect until he snaps and tells us the truth thing. Because that would still qualify as interrogation if a reasonable officer should have known it was likely to elicit a response. Also of note, you do not have to be informed of your Miranda rights before being asked basic identification questions.

How to invoke those rights?

Once they’re read to you, the police can’t try to convince you to waive them. If you do choose to waive your rights (which, from a lawyer’s perspective, is never, ever a good idea), usually it is by signing a statement that says you’ve been informed of and understand your rights. Or, at least acknowledging that on the record (audio or video tape).

The safest bet if you wish to exercise those rights is to affirmatively invoke them. Say, “I wish to remain silent,” or “I wish to speak to my attorney.” Once you’ve invoked your rights, in most circumstances, the interrogation must stop.

But keep in mind that you must be the one to invoke those rights. No one can do it for you. It’s not like in the movies where an attorney can barge into the interrogation room, inform the police that you are represented by counsel and that they aren’t allowed to talk to you anymore. That’s not how it works. No one is going to come save you. If you want to be represented by counsel, SAY SO. If you want to remain silent, SAY SO. (Ironically, saying you want to remain silent is a much more effective way of invoking your right to remain silent than simply remaining silent.)

Once you have invoked your rights the interrogation cannot continue until you have obtained counsel (in the case of invoking the right to counsel) or sufficient time has passed and your rights have been read to you again (in the case of invoking the right to remain silent). In either case, if you are the one to reinitiate the converstaion, the interrogation can resume.

And if you neither affirmatively waive nor invoke? Well, that’s a gray area, but there is a heavy burden on the prosecution to prove that you did actually waive if there’s nothing on the record.

So please don’t rely on lessons gleaned from all those Law & Order (or other police procedural of your choice) marathons over the years. Even though things like Miranda may seem like they’ve absorbed into your skin at this point. The real law is just different enough for that to get you in trouble you don’t need to be in.