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Constitional Issues

The Miranda Warning

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The following is not legal advice but is for information only. Legal advice is when an attorney applies the law to a person's individual circumstances and advises them on their legal options or potential exposure to legal harm, which a web page clearly does not.


It is a common misconception that when a person is arrested they must be read the Miranda warning. It only comes into play when police try to get a person to say something to incriminate themself - either by what police say, do, or ask. Facts are important depending on what police do for evidence obtained to be used against a defendant by the government in their own case. Sometimes statements can be suppressed - not used by a prosecutor in the government’s own case - if facts on the way statements were made are in a defendant’s favor.

First, a person has to be effectively under arrest or it’s equivalent. Second, the police have to be asking questions - and they can be innocuous. If the police’s actions are NOT questions, what they do (by words or actions) have to be designed to get the arrestee to say something incriminating. Sometimes judges and prosecutors don’t understand this difference between questions (where any damaging response could be suppressed even to innocuous questions) to using tricks to get a person talking. Third, what’s said by the person arrested (effectively in custody) is, in some way is incriminating. Finally, if those elements are in place there has to have been a Miranda warning first for anything said to be used against the defendant in the government’s case. Legally it is ‘in custody and subject to interrogation.’ If a warning is not given in those circumstances, the evidence could be suppressed.

However, even where evidence is excluded (suppressed), it could still come in during a trial. If a defendant gives evidence, anything suppressed could be used as ‘impeachment’ for an inconsistency - where what’s said on the stand is challenged because of what was said before that differs. The process of impeachment is what undermines someone’s credibility to a jury.

The Miranda warning itself is now familiar and ingrained in popular culture. Case law says the elements of the warning don’t have to be exact but contain a version of the following that outline the rights within it.:

  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.

  4. If you cannot afford an attorney, one will be provided for you.


It isn’t a ‘right’ in its own, but gives a warning about rights. A person is not 'entitled' to a warning either. The idea is to protect those in a coercive environment - police custody. 


The Miranda rule is named after the landmark U.S. Supreme Court case, Miranda v. Arizona (1966), in which the Court held that statements made by a suspect in police custody during an interrogation are admissible as evidence only if the suspect was informed of their rights and then voluntarily waived those rights. The decision in Miranda was pretty clear - but the protection given by a warning has eroded over time. If someone is detained (not free to leave, so seized under the constitution) but not actually arrested, a Miranda warning does not legally need to be given. Anything that does not have to be given will not be - of that there is no doubt - even if it is the moral thing to do. Police officers will stay at or just behind the line.

The purpose of the Miranda rule is to protect a suspect's Fifth Amendment right against self-incrimination and Sixth Amendment right to counsel. If law enforcement officials fail to provide a suspect with Miranda warnings before interrogating them, any statements obtained during the interrogation may be excluded from evidence at trial.

However, it is of no surprise to a criminal defense attorney that all that is utterly meaningless when a defendants just blabs on and on without any questions being asked at all. Words tumble from a mouth like a waterfall when all that is needed is “I am invoking my right to silence” and “I want an attorney.”


When those words are uttered, QUESTIONS MUST STOP.

Every person has a right to remain innocent as they presumed to be. Rights are there to be used. A right to silence is a right for a reason - as important as free speech or any other. When not used, these rights disappear. A rule of thumb is that if police are asking, their case is weak. If they have enough evidence to charge a person, questioning is not needed.

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