Know Your Miranda Rights

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What are Miranda Rights, and why are they called “Miranda?”

How & When Can You Use Your Miranda Rights?

What Can’t Your Miranda Rights Protect?

What are Miranda Rights ad why are they called “Miranda?”

“Miranda Rights” refer to some of the rights that are contained in the 5th amendment to the U.S. Constitution. The Constitution consists of the preamble, seven articles, and then a series of amendments. The preamble is familiar to most people: “We, the people, of the United States of America, in order to form a more perfect union…”

The first ten amendments to the U.S. Constitution were adopted at the same time, and these first ten amendments are known as The Bill of Rights, because they involve rights that the authors of the Constitution felt were important enough to spell out individually and specifically. These rights are guaranteed to every U.S. citizen against the U.S. government – which acts through police, or any other government agent or agency.

The 5th Amendment reads:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor small be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The fifth amendment right against self-incrimination is often referred to as “pleading the fifth.” The right against self-incrimination applies whether the person is in Federal or State court (Malloy v. Hogan, 1964), and whether the proceeding is criminal or civil (McCarthy v. Arndstein, 1924). This means that if you are charged with a crime by a federal prosecutor or a county attorney’s office, or if you are facing an implie4d consent proceeding, or other civil proceeding, these rights are guaranteed to you.

Miranda v. Arizona (1966) was a landmark U.S. Supreme Court case. Ernesto Miranda had signed a statement confessing to a crime, but he did not know he had an absolute right to remain silent and not talk to the police, as guaranteed to him by the Constitution, and the police did not inform him of his constitutional right before asking him questions and then having him sign a written confession. His conviction was based entirely on the confession he signed, and not on any independent evidence in the state’s possession.

The Supreme Court reversed his conviction and said, “The prosecution may not use statements… stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” The Court went on to define in its opinion, for the first time, some critical terms that now are the cornerstone of how Miranda Rights operate in our judicial system.

The procedural safeguards to which Chief Justice Earl Warren referred in his opinion in Miranda v. Arizona are now standardized into the Miranda Warning and it is the speech that is delivered by the police to an individual upon his or her arrest that begins with, “You have the right to remain silent.”

The rest of the Miranda Warning reads, “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 for you.” So, where does the other right – the right to an attorney – in the Miranda Warning come from?

Like the fifth amendment, the sixth amendment to the U.S. Constitution includes important rights. The sixth amendment reads: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for this defense.

The U.S. Supreme Court stated in Brewer v. Williams (1977), that the right to counsel “[means] at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him, whether by formal charge, preliminary hearing, indictment, information, or arraignment.” Additionally, the Court said, once judicial, or adversary, proceeding have begun against you, you have a right to legal representation when the government interrogates you.

Adversary proceedings are considered to have begun when you are arrested, arraigned on an arrest warrant before a judge, or committed by the court to confinement. So, how and when can you assert your Miranda Rights?

When and How Can You Use Your Miranda Rights?

In order for your Miranda Rights to “attach” – that is, to be applicable in your situation, three things must have happened: You must be in custody, police must be interrogating you, and you must have asserted your Miranda Rights. The first two conditions are known as custodial interrogation.

The Court in Miranda v. Arizona defined custodial interrogation as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”

In essence, police will have made you feel like you were not free to go – either by arresting you, by holding you in custody, or by significantly depriving you of your freedom of action; they will read your Miranda Rights to you; they will ask you if you wish to talk to them and thereby waive your rights; and you can choose to assert your rights at that time, or to waive your rights and talk to them. Remember, the keys are that you do not feel free to leave and the police are doing the questioning. The last element that you have asserted your Miranda Rights, is the element that is up to you: You must assert your rights clearly and verbally.

How do you know if police preserved or violated your Miranda Rights? The Miranda Court defined procedural safeguards as the following measures: “Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.”

There are two phases during which Miranda issues may arise: Pre-arrest and post-arrest interactions with police.

Pre-arrest Questioning
If you are not under arrest, you will not be red the Miranda Warning, and police can still talk to you!

Until police have begun custodial interrogation, your Miranda Rights have not attached. For example, if the police knock on your door and wish to talk to you about some event or person, you do not have the right to remain silent unless you are in police custody. Or, if you are walking down the street and police stop you to ask you if you know anything about a crime that has just happened, police do not have to read you your Miranda Rights. The test is, if you are free to leave, then you are not in custody and police do not have to read you your Miranda Rights. The exception to this is that if you feel that speaking about a person or event would incriminate YOU, you may politely decline to answer the questions.

Also, if you initiate the conversation with police, they do not have to read you your Miranda Rights – and anything you tell them can still be used against you, because there was no “interrogation,” as the police were not asking you questions, you initiated the contact.

If you have received a request from police to go to the station and answer questions, you have the right to politely decline to go. But, if the police really want to talk to you, they will likely find probable cause to obtain a search warrant, or to arrest you – at which point they will have to read you the Miranda Warning and you may assert your rights. You can request to speak with an attorney before you meet with police, though.

Post-arrest Questioning
In order for your Miranda Rights to attach, there must be an arrest, or other form of police authority exercised over you. Police may arrest a person if they see the person commit a crime, or if they have probable cause to believe the person committed a crime.

The Miranda warning must be read to you once you are in custody and police are talking to you about why you have been arrested if the police intend to use your statement at trial against you. And, as soon as you are in police custody and police wish to speak to you about why they arrested you, you may assert your right to remain silent and consult with an attorney.

The best thing you can do to help your Minnesota DUI lawyer is to assert your right to remain silent as soon as you can – cooperate politely, don’t say anything about what happened, and contact a lawyer as soon as you are allowed to do so.

Many people find that even though they initially thought they could handle talking to police and waiving their rights, part way through interrogation, they feel that they are getting in deeper than they wanted to and they wish they hadn’t waived their rights. YOU CAN ASSERT YOUR RIGHTS AT ANY TIME – even if you have already waived them and started talking, you can clearly assert your right to remain silent and talk to a lawyer, and police MUST stop questioning you IMMEDIATELY, and allow you to contact a lawyer and remain silent.

You should also know that you do not have to wait to be offered your right to consult with a lawyer before you can assert that right. You can ask to be represented by a lawyer before police read you your Miranda Rights! Don’t be shy about asking to consult with a lawyer, just be polite when you ask.

What Can’t Your Miranda Rights Protect?

Miranda Rights are intended to protect you from police questioning against your will, not to prevent police from gathering evidence against you. Therefore, although you have the right to remain silent and the right to an attorney, they are not absolute rights.

For example, there is certain information you MUST give to police, even if you assert your right to remain silent. In 2004, the U.S. Supreme Court ruled that the Fourth, Fifth and Fourteenth Amendments do not give people the right to refuse to give their name when questioned by police (Hilbel v. Sixth Judicial District Court of Nevada.)

Another example is that if you say anything about what happened, or confess to any crime, if you haven’t been read the Miranda Warning and subsequently waived your Miranda Rights, then anything you’ve said cannot usually be used as evidence against you in court, because it was obtained in violation of your Miranda Rights. However, if there is other evidence against you that is sufficient to convict you, even if you give a statement that violated your Miranda Rights, you can still be convicted. That is why it is important to consult with a Minnesota DUI lawyer who will fight vigorously to ensure that if your rights were compromised, you are still protected.

Also, if you confess to a crime without being read your Miranda Rights, thinking that your confession cannot be used against you; think again. Police only need to be able to show that they could have obtained the evidence another way, for example through investigation, and they can use your statement – even though it was taken in violation of your Miranda Rights.

Additionally, an officer may stop you and ask you questions, and the officer only must read you your Miranda Warning if the officer plans to use your statement as evidence at trial. Therefore, an officer may stop you and ask you questions and not read you your Miranda Rights. You may politely refuse to answer, but if you do, the officer has the option of deciding to arrest you for breaking the law in some other way. For example, officers may arrest individuals for “loitering,” which is a vague law that can be broadly interpreted. Police can use loitering as a way to arrest someone they suspect is involved in a criminal activity the police don’t have enough evidence to charge yet. And, again, once you are in policy custody and police begin to ask you questions, you don’t have to wait to be read your Miranda Rights – you may assert your Miranda Rights immediately.

In addition to not being absolute, your Miranda Rights don’t apply in every situation, either. There are situations in which your Miranda Rights can’t protect your interests.

For example, if you have been arrested for DUI, you will be asked if you wish to contact an attorney before deciding whether to take a chemical test. However, you will be given a limited opportunity to use a telephone to contact an attorney, and whether or not you manage to contact an attorney at that time, you will have to decide whether to submit to or refuse a chemical test. That is why it’s important to contact a Minnesota DUI lawyer as quickly as possible, as soon as you have the chance.

Another example is that you cannot “plead the fifth” when asked by an officer to see your driver’s license and proof of insurance. That is because when you signed to receive your driver’s license, you signed a document stating that you gave police permission to ask you for these documents and that you would cooperate when asked.

Furthermore, although you can assert your right to remain silent or your right to contact a lawyer at any time before, during or after questioning, you must clearly verbally state that you want to stop talking to police and talk to a lawyer, or the police can continue to question you. Also, if you have asserted your right either to remain silent or to wait to answer any questions until a lawyer is present, and you initiate conversation with police, anything you say to them – even though you have asserted your rights – can still be used against you because what you say will be considered extemporaneously made statements and not statements made in response to police questioning (interrogation). So once you’ve asserted your rights, STOP TALKING.

A good way to make sure you exercise your Miranda Rights appropriately and that they are honored by police is to go through this list:

  • Is there police custody (am I not free to leave)?
  • Is there interrogation (am I being asked questions, instead of initiating)?
  • Was a Miranda Warning read before questioning began and after custody was established?
  • Was there a waiver of Miranda Rights?
  • Was there an explicit assertion of Miranda Rights – either to remain silent, consult with a Minnesota DUI lawyer or both?
  • If there was a waiver and then an assertion later on, did questioning stop immediately?
  • Were any statements made after Miranda Rights were asserted and police stopped questioning?
  • Did any questioning happen after a lawyer was requested that was outside the presence of the lawyer?

The most important things you can do to protect your rights are:

  • Assert your right to remain silent IMMEDIATELY.
  • Contact a Minnesota DUI lawyer as soon as you can.
  • Do not say anything more once you have asserted your rights.
  • And, be cooperative and polite throughout your encounters with police.

For more information on the Miranda Warning, visit, or