The Miranda Warnings

When a person is taken into police custody, they must be Mirandized. This means that the individual must be given a warning which clearly and concisely states the persons rights. You probably know the Miranda warning best from television shows, but in real life, a good statement of Miranda rights might be:

“You have the right to remain silent. 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. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”

The Miranda warnings originated from the case Miranda v. Arizona, where the United States Supreme Court determined that Ernesto Miranda had no way of knowing that he had the right not to confess, nor that he could get an attorney provided for him, and that was why he confessed to the crime. The U.S. Supreme Court determined that his confession was essentially coerced, and that to protect citizens, all persons must be read certain essential rights when they are taken into custody.

The Right to Remain Silent

Every person who is arrested has the right to remain silent. This comes from your Fifth Amendment right, which I discussed here. Although now we all hear that right on every law enforcement television show and movie out there, back in 1966, the warning was not known, and some people did not understand that they could remain silent and that doing so would not cause any problems for them.

The right to remain silent warning comes with a consequential statement: anything you say can and will be used against you in a court of law. This serves to drive home the warning that a person should remain silent. It shows the accused that any confessions will be considered valid. Prior to these warnings some people did not know whether their confessions were actually confessions, rather than just them talking to a friendly police officer. This forces the officers and the person to understand their roles: that of law enforcement vs. the accused- and the relationship is not always a friendly one.

The Right to an Attorney

Every accused person has the right to legal representation; this right is provided by the Fifth Amendment as well. This right is separate and distinct from the Sixth Amendment right to counsel, which refers to a right to an attorney while in court. The Fifth Amendment right is a right given while being interrogated or questioned. Informing a person of this right lets a person know they are being seriously questioned and that they do not have to submit to questioning without legal advice.

The right would mean almost nothing without an assurance that even an impoverished person could get legal help, and so the warning contains this consequential statement: if you cannot afford an attorney, on will be provided for you. This lets people know that there is legal advice out there available for all persons, and not just people who can pay a lot for legal help.

Exception

There is one exception to the Miranda Warnings. The warnings do not have to be read if there is an on-going public emergency and officers believe the suspect has information which would end the emergency.

Waiving your Rights

You must affirmatively assert your Miranda Rights, or you waive them. You can assert your rights by stating that you want an attorney, by stating you won’t answer questions until you see an attorney, or a similar statement. Once you assert your Miranda Rights, the interview should immediately cease until you have had time to confer with an attorney. The officers cannot ask you any more questions without violating your rights.

You can waive your Miranda Rights either by responding to officers questioning, or by actually saying you are ignoring your Miranda Rights. Any attorney would counsel you not to waive your rights until you have spoken with an attorney and gotten some legal advice on the situation.

If you were taken into custody and interrogated by police, you should have been read you Miranda rights. If you were not, you may be able to have statements excluded from trial. If you think you were not properly read your Miranda rights, contact Shannon K. McDonald today.

Fifth Amendment: Right to Remain Silent

The inspiration from this post comes from an article that you may wish to read. It is an article that describes how one attorney took his client’s rights so seriously that he ended up in contempt of court because of it- and how one judge can be so far off base that having a dedicated attorney is not only a benefit, but an absolute necessity. See this ABA article: “Law Firm Says Judge Jailed Defense Attorney for Telling Client to Take the Fifth.”

The Fifth Amendment of the United States Constitution provides the right to remain silent, it is also less commonly known as the right not to incriminate oneself while testifying in court or speaking with law enforcement or prosecutors. You may choose to waive that right and confess, but all defendants are to be made aware of the right to remain silent.

The Fifth Amendment of the United States Constitution is mirrored by the Pennsylvania Constitution in Article I, Section 9, which states that an accused cannot be compelled to give evidence against himself. The Pennsylvania courts have interpreted the two provisions together, and use federal standards when examining the Pennsylvania privilege.

The right applies any time a witness (not just the defendant but any witness) is asked to testify or talk about a subject that may implicate him in a crime. If the witness thinks that his or her statement will show criminal involvement, then he or she has the right to take the Fifth and refuse to answer the question. This right applies anytime the statement may be used against the person, not just at trial, but at any time when the person is asked a question by judicial officers or law enforcement, from initial interrogation to the appeal.

Be careful, because even in a civil proceeding, if the statement could cause criminal proceedings, then the witness may take the Fifth. The same applies to an administrative proceeding. If you are in front of the state licensing board or the employment board or a similar board you have the right to take the Fifth there as well.

An attorney should be prepared to object to any question which may incriminate the witness- especially if the witness is also a defendant. Failure of the attorney to make an objection can result in criminal prosecution (for an ordinary witness), conviction (for the defendant), and a claim of ineffective assistance of counsel (to which every defendant has a Constitutional right).

If a judge has compelled a person to testify despite their claim of the Fifth Amendment, it is grounds for what is called reversible error. Reversible error means that upon appeal, the appellate court will reverse the trial court’s decision and send the issue back for a new trial. Compulsion was what the judge was attempting to do in the article which inspired this post.

The privilege does not extend to consequences which would be non-criminal; this includes liability in a civil suit, community disgrace, loss of employment, or even something which would cause a loss of probation if it does not create any criminal liability. The court will also not stop the jury from making any adverse inferences or assumptions based on the refusal to answer.