Criminal Charges and Speaking With Police

read you your rights

Prior to discussing your constitutional right to remain silent, I want to restate my professional opinion regarding speaking to police or any member of law enforcement regarding criminal allegations—don’t answer any questions, don’t make statements (written or verbal) and call a lawyer! Speaking to police will never help your case! I believe so strongly in this advice that I’ve actually put it on the back of business card (pictured above.)

With that said, all persons have a right to remain silent under the Fifth Amendment to the United States Constitution and these rights are given to criminal suspects in the form of Miranda Rights which are read prior to a custodial police interrogation. These rights are named from the United States Supreme Court case of Miranda v. Arizona (1966) in which the Court ruled that incriminating statements, elicited by a suspect not informed of this right violates the Fifth Amendment and Sixth Amendment (right to counsel). Specifically, police must advise a suspect that he or she has the following rights:

  1. The right to remain silent;
  2. Anything the suspect does say can and may be used against him in a court of law;
  3. They have the right to have an attorney present before and during questioning; and
  4. They have a right, if they cannot afford the services of an attorney, to have one appointed.

Police can advise a suspect orally or in writing and the officer must make sure that the criminal suspect understands what is being said. While Miranda Rights are required under the Constitution, this protection is only triggered if a suspect is in custody and is being interrogated—custody and interrogation are critical elements. Custody doesn’t always mean a formal arrest especially in Pennsylvania where the restriction of a person’s movement (not free to leave) could be considered custodial. It is important to keep in mind, however, the fact that a person is in a police station or the police or law enforcement are simply speaking to someone and asking questions doesn’t trigger Miranda Rights or Constitutional protections. The fact that a police officer doesn’t administer Miranda warnings doesn’t mean that the statements are necessarily coerced and therefore inadmissible in court.

A custodial detention is only constitutionally permissible if based on probable cause under the Fourth Amendment to the United States Constitution. In Pennsylvania, the courts will apply a totality of the circumstances analysis to determine whether a person would feel free to leave. An encounter becomes custodial when under the totality of the circumstances it appears that the detention is coercive (again not free to leave.) If police inform a suspect that he is free to leave but the suspect nevertheless makes a statement, those words could be considered admissible even if Miranda Rights were never given to that person.

I’ve written articles on the forms of police contact and I encourage you to read them in addition to my information on probable cause, reasonable suspicion, as well as illegal search and seizure. When police fail to administer Miranda warnings it does not mean that the statements received are coerced but only that courts will presume that the constitutional right against compulsory self-incrimination hasn’t been intelligently exercised.

Miranda warnings only need to be administered when a person is taken into custody or his freedom has otherwise significantly restrained. Again, the issue of restraint and custody is often not very clear especially in situations where a person is sitting in a police station but not necessarily under arrest (“Just come in to talk to us.”). Criminal Courts are focused on whether a statement is knowingly and voluntarily made along with circumstances surrounding those admissions. The warnings, however, are important and in the event that a suspect were to make incriminating statements during the course of an unwarned interrogation police will usually administer the warnings and then re-question the suspect to ensure that there is no constitutional admissibility issue.

Prior to the Miranda decision courts would evaluate in-custody statements and whether they were voluntary within the meaning of the Due Process clause of the Constitution. Specifically, courts would evaluate whether the techniques used to obtain the statement offended Due Process. Miranda warnings practically reinforce a person’s Fifth Amendment right against self-incrimination.

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