Do The Police Have To Read Me My Rights?
The process of the police “reading a suspect’s rights” is known as the Miranda Warning, or Advisal. It is very often seen on police television shows where the officer says the Miranda Warning while he is cuffing the suspect. Notice that he actually isn’t “reading” it because his hands are full with the handcuffing. It certainly adds to the drama of the moment, but the question is, “is it reality?” “Do the police actually read the Miranda rights as the arrest is occurring?”
The Miranda warning states:
- 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 prior to any questioning.
- If you can’t afford an attorney, one will be appointed for you.
It has now been 50 years since this rule became law. The rule was passed in 1966 by the United States Supreme Court in the case of Miranda v. Arizona. Mr. Miranda had been arrested on suspicion of rape and kidnapping, and he was brought to the police station for questioning. He was interrogated for many hours and he eventually confessed. His confession was admitted as evidence at trial and he was convicted. He then appealed to the Supreme Court and his case was overturned.
The primary purpose of Miranda is not to protect a suspect from getting arrested, but rather from coercive police questioning, or interrogations. The Supreme Court reasoned that if the police are going to question a suspect after he’s been arrested, then it is only fair that the police inform the suspect first, prior to questioning, that he has the right not to confess—that he has the right to remain silent. Before that right became known, most people in America were not aware of their right to remain silent.
The right actually comes from the 5th Amendment of the Constitution, which states that no one shall be compelled to testify against himself. This means that in a criminal trial, the prosecutor can’t call the defendant to the stand. The defendant has the right not to testify. He can if he chooses, but he can’t be ordered to the stand.
To emphasize, the rule is that police must read these rights before they ask questions of the suspect. More specifically, questions that are of an incriminating nature. In other words, questions that ask if the suspect is somehow connected to the crime. Unfortunately, the television shows don’t show this part. They only show the rights being read at the same time as an arrest which gives a misleading impression. It really makes no sense to read it then. The suspect is in a state of high emotion and probably not listening very carefully. The rule does not require that the police read Miranda while they are in the process of making an arrest, only before they ask questions.
Waiver of Miranda Rights
In the real world of the police, Miranda is read just moments before the questioning begins. At that time both the suspect and the officer have calmed down a bit and the suspect can better hear and understand. The officer most often will actually read it from a card to ensure that every word is spoken and that there are no mistakes. That is important because right after the officer reads Miranda, two follow up questions are asked:
- Do you understand these rights?
- Do you wish to give up your rights and speak with me?
It’s not enough just to read Miranda. Those two questions must be asked! If not, then the suspect’s Miranda rights have been violated. The law requires that a suspect must first affirmatively give up his Miranda rights before the officer is allowed to ask questions. In law it’s known as a “knowing and intelligent waiver.” If you think about it, it would be hard for a suspect to fully understand his rights when it’s being told to him while he’s on the ground being handcuffed. It’s better when the situation has calmed down and he can listen carefully to the officer.
Whenever there is a rule of law, there is also what is called a legal remedy. A remedy is the consequence for the police violating the rule of law. For example, if the police enter a house without a warrant and seize evidence, the remedy in that case is suppression, or exclusion, of that evidence. In other words, that evidence is thrown out of court and can’t be used against the defendant.
But what is the remedy if the police obtain a confession in violation of the suspect’s Miranda rights? The answer is similar to the one above. The judge will exclude only the confession from evidence. However, other evidence, such as eye witness testimony, can still come into evidence. A violation of Miranda does NOT necessarily result in a dismissal of the case—only exclusion of the statement.
In the real case of Mr. Miranda, he was given a new trial but the prosecutor this time could not use his confession. It was excluded from evidence. The jury was not aware that he had confessed to the rape and kidnapping. Nonetheless, the prosecutor had other evidence, and ultimately the jury convicted him in his second trial and he was sent to prison.
If you have questions about this blog post or if you’ve been accused of a crime, contact San Diego criminal defense attorney Timothy J. Richardson for a free, no-obligation consultation.