The Myth Behind Miranda Warnings

February 14, 2016
man being hancuffed

Too often I encounter clients and other citizens who have a misconception regarding the protections under “Miranda doctrine” and the subsequent effects during their interactions with law enforcement. In an effort to dispel any misunderstandings surrounding this doctrine and what it means to be “read your rights,” I offer the following explanation and background.

An Officer’s Failure to Advise a Suspect of His/Her Miranda Rights Does NOT Invalidate an Arrest

The most common issue I have faced surrounding Miranda Warnings when sitting down with a client is the mistaken belief that an officer’s failure to read an arrestee these rights somehow invalidates the arrest. This is simply untrue. A law enforcement officer needs only probable cause in order to validate an arrest of a suspect. An officer does not necessarily need to advise a suspect or arrestee of his/her Miranda rights in order to proceed with or maintain a valid arrest.

If the Officer is not Required to Advise a Suspect of Miranda Rights, Then Why Do Officer’s Do It?

A Miranda Warnings advisement occurs in order to inform a suspect of his rights under the Fifth Amendment and Sixth Amendment. Specifically, the officer is advising the suspect of his right to remain silent, that anything he says can be used against him, that he has the right to legal counsel, and that if he cannot afford legal counsel, one will be provided.

As an historic backdrop, prior to the Miranda decision, various law enforcement agencies were developing and implementing training techniques in order to procure confessions from suspects. Suspects who were under interrogation and unaware of their right to remain silent and have an attorney were providing confessions abundantly in the face of these tactics. The Miranda decision states that when a person is in the custody of a police officer and is subject to interrogation, he should be made aware of his rights to remain silent and his right to counsel in order to preserve his ability to invoke his Fifth and Sixth Amendment rights.

How Does the Advisement of These Rights (or the Absence Thereof) Help a Criminal Defendant?

Generally, any evidence procured by law enforcement in contravention of a person’s constitutional rights may not be used in a criminal proceeding. In the context of Miranda Warnings, if a person makes an incriminating statement in response to law enforcement interrogation while he is in the custody of law enforcement and without having been advised of these rights, then that statement may be excluded from a criminal proceeding.

This Does NOT Mean that Everything You Say Can be Suppressed

The principles surrounding Miranda doctrine are founded in the Fifth Amendment privilege against self incrimination. However, the absence of an advisement does not suppress everything you say necessarily. The doctrine only applies to times of “custodial interrogation.” Interrogation has been defined as questioning by law enforcement or its functional equivalent. In other words, interrogation encompasses direct questioning as well as statements and actions made by law enforcement to a suspect that are designed to elicit an incriminating response. Thus, a broad spectrum of interaction could be deemed “interrogation” for these purposes.

Custody is a much hairier topic. The rudimentary definition of “custody” for these purposes is a formal arrest or restraint on freedom of movement. This means that a person may be in custody without being formally arrested. However, when a person is not arrested, the question over custody directs us that the general rule is that there is no general rule. Courts look at all of the facts and circumstances and rely upon how the situation is viewed from the vantage point of a reasonable person in the suspect’s position. Circumstances such as location, how many officers are present, how the suspect came to be in that situation, etc. may be considered in determining whether or not a person is in custody for these purposes.


Now that you know the basic framework behind Miranda Warnings, it is up to you to use this knowledge to protect yourself. The absence of a Miranda advisement does NOT invalidate an otherwise valid arrest, so do not assume it can be used in this way. Rather, remember that it protects you from the things you say when in the custody of law enforcement. The safest thing would be to invoke the right to remain silent and not say anything from the onset. Many might say that the custody element is too fluid to risk that a judge will agree with you that you had no freedom to terminate the encounter. Whatever you decide to do, remember that law enforcement officers have a difficult job. Asserting your rights does not mean you should be rude or disrespectful about it. Simply and politely state that you do not feel comfortable speaking with law enforcement without an attorney present. Be polite, be cooperative, but be smart and use what is available to you to protect your rights.