One of the most common questions that people ask me, “the police didn’t read me my rights—can’t we get the charges thrown out?” Relatively simple question but, like most things in the law, a complicated answer. The answer most of the time is “No.”
Before I proceed any further, I would note that it’s important to consult with an attorney who specializes in criminal defense. Miranda questions are incredibly tricky and every case is slightly different. The purpose of this post is to give a broad overview of some of the issues that often arise and is by no means intended to supplant an experienced criminal defense attorney’s advice. The case has resulted in countless pages of academic literature and an equal number of hours of discussion. This short post cannot even begin to scour the surface of this discussion.
By now most of us are familiar with the “Miranda rights” that police officers give people after they have been arrested. Notably,
- You have the right to remain silent and refuse to answer questions.
- Anything you say may be used against you in a court of law.
- You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future.
- If you cannot afford an attorney, one will be appointed for you before any questioning if you wish.
- If you decide to answer questions now without an attorney present, you will still have the right to stop answering at any time until you talk to an attorney.
- Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney present?
It’s important to keep in mind that you don’t have to be read those rights verbatim and there can be some variation on those warnings. However, my experience has been that most of the time when people are interrogated, there is a written form that has these instructions written out and the suspect signs below the instructions.
In looking at whether a person has a claim under Miranda, a person must be in what they call a “custodial interrogation.” The Miranda Court 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.” Having read this statement most people are likely thinking—what does this mean? If we break the statement down into two (2) parts, custody and interrogation, as the phrase implies, understanding when the police need to read a suspect his or her warnings becomes a lot easier.
Step 1: Do the police need to read me my rights?
For Miranda to be triggered, a person needs to be in “custody.” The formal definition states that a person is in custody when they are “physically deprived of his freedom in any significant way or is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted by such interrogation.” It’s important to keep in mind that when courts are determining whether a person is in custody they use an “objective standard” meaning what would a reasonable person in that person’s position believe. This is critically important because oftentimes clients tell me “the police made me feel that I wasn’t free to go”. How the police made a specific person feel does not matter because how the individual being interrogated felt is irrelevant. Rather, the entire inquiry revolves around what a reasonable person in that person’s situation would believe.
Admittedly, this is a difficult test for anyone to apply including the court system. To help everyone, the courts have adopted several factors including:
- the basis for the detention;
- the length of the interrogation length;
- the location of the interrogation;
- whether the suspect was transported against his or her will;
- if the suspect was transported how far was the transportation and why was the suspect transported to begin with;
- whether restraints were used;
- whether the law enforcement officer showed, threated or used force; and
- the investigative methods employed to confirm or dispel suspicions
Step 2: The Police didn’t read me my rights—now what?
To answer this question we must look at whether there was an interrogation. The formal definition has been defined as “police conduct calculated to, expected to, or likely to evoke admission.” Stated a much simpler way, it’s a question and answer session. This is rarely an issue and I leave an examination of this subject for another day.
Step 3: What’s the remedy?
If the police did not read my Miranda warnings, I was in custody, and the police questioned me, can I get the charges dismissed? Once again, the answer is “maybe.”
To answer this question, we must look at whether the suspect made an “incriminating statement.” An incriminating statement is a statement against self-interest. Stated another way, it’s a statement that implicates a person in a crime. An example of an incriminating statement is “I shot and killed my wife because she was cheating on me.” If the police did not provide the suspect with his Miranda warnings, the suspect was in custody, and the statement was made in response to a question, then the protections of Miranda are triggered and the statement would likely be suppressed (i.e. excluded from evidence).
On the contrary, let’s say that the police did not read me my Miranda warnings, and I was custody, but I didn’t make any incriminating statements, can I get the statement suppressed? Yes you could but what’s the remedy? For example, if the police started asking me background questions such as “what’s your name” or “what’s your date of birth” and I was not read my Miranda warnings but I was in custody, then yes, I could get the statements kicked out. However, because none of the answers to the questions were incriminating, there is no harm, no foul.
Step 4: Do the Police still have a case against me?
All of this leads me to my final point—I was not read my Miranda warnings, I was in custody, the police questioned me, and I made an incriminating answer, what’s the result? The simple answer is that the case is not ultimately over because the Commonwealth may still be able to prove your guilt beyond a reasonable doubt with other evidence. Remember, the remedy for a Miranda violation is that the incriminating statement gets suppressed, meaning that the police/Commonwealth cannot use the statement against you in a trial. This does not mean that the police/Commonwealth cannot prosecute you.
Going back to the example of where the suspect stated, “I shot and killed my wife because she was cheating on me.” Let’s say that the statement was suppressed and the police/Commonwealth cannot use that statement, the police/Commonwealth may have other independent evidence against the suspect. For example, did witnesses see the suspect shoot his wife? When the police arrested the suspect, did he have gunshot residue on his hands? When the police arrested the suspect, was he holding a gun with blood on it and the blood matches the DNA of the victim? Often times, when a court suppresses a statement in violation of Miranda, the district attorney’s office will go back and review its case to determine if there is other corroborating evidence to support a conviction without the incriminating statement.
Hopefully what this post has shown is that Miranda, while incredibly important, is quite limited in its application. A law enforcement officer’s failure to read a suspect their Miranda warnings, often times does not result in an outright dismissal of the charges.