By TONI MESSINA
I got an inquiry this week
from a potential client who was arrested for shoplifting (a crime worthy of its
own Criminally Yours column), but her question didn’t concern the allegation.
What she wanted to ask me was — because police hadn’t read her Miranda rights
when they arrested her — wouldn’t that mean the whole case had to get thrown
out?
The answer is no.
Miranda warnings go to one and
only one very specific thing — if you’re arrested and police question
you, they are supposed to read your Miranda warnings first. If not, the
statements you make risk being thrown out of court — or, in legal terms,
suppressed. By not reading the Miranda warnings, the cops risk forfeiting
your statements, not the arrest itself.
Here’s the rule: if you’ve
been detained or arrested (detention is a stop, short of arrest), and police
begin to question you about a suspected crime, they are obligated to
read your Miranda rights. Miranda rights are the four things you’ve heard
a million times on cop shows: 1) You have the right to remain silent, 2)
Anything you say can and will be used against you in a court of law, 3)You have
the right to an attorney, and 4) If you cannot afford an attorney, one will be
appointed for you.
Police carry the warnings
around with them printed on little business cards. At trials, they often have
to refer to the card, so infrequently do they actually read the warnings.
That’s because unlike the way
television depicts arrests — as soon as the cops slap the cuffs on you they
read you your Miranda rights — this rarely happens in real life.
Why? Because they don’t have to. They only have to read you your
rights if they intend on questioning you about the crime for which they are
arresting you.
Should you volunteer something
about your guilt without having been asked a question, anything you admit could
come into evidence, Miranda or not.
For example, you’re stopped
for drunk driving and you volunteer, “But I only had two drinks,
officer.” That will come into evidence. It wasn’t the subject of
questioning, thus Miranda was not necessary.
If on the other hand, if
you’re stopped by police and they ask you affirmatively whether you’ve been
drinking and you give the same answer, arguably the statement shouldn’t be
admitted. However, there are nuances. Technically if you’re sitting
in your car when you make the statement, and haven’t been officially detained
or arrested (that’s a legal call, not what it felt like to you), the prosecutor
will argue no rights were necessary because you hadn’t been detained or
arrested.
Here’s another recent example.
Let’s say you jump a turnstile without paying the fare and the cops pull you
off to the side. The first thing out of your mouth is: “I’m sorry
officer, I was just in a hurry.” That statement can be used against you.
You volunteered it without a single question from police. Too bad for
you.
Or let’s say you’re in the
back of a cop car and the police in the front are having a chat about what to
charge you with.
You decide to say, “I f *cked
up, just don’t charge me with robbery.” That statement will come in even
though they’ve laid the groundwork for you to want to volunteer something.
This seems like pretty basic
stuff, but you’d be surprised at how many people volunteer information that’s
later used against them, and at how long cops wait to read you your Miranda
rights, hoping you’ll do just that.
So back to the basics: even if
a cop doesn’t read your Miranda rights, the arrest and subsequent prosecution
does not get thrown out. Maybe a statement you made in response to
questioning could get suppressed, but cops are pretty clever at how they draw
things out of you without questioning you.
The best answer always when
stopped by police or asked to come in during an investigation, is “I’m not
saying anything until I have a lawyer” or even more simple — just shut up.
That way whether they’ve read
you your Miranda rights or not, you’re protected.
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