Constitutional Right to Remain Silent
Miranda warnings essentially advise people of their constitutional right not to answer questions and to have an attorney present. Many people, including some lawyers, mistakenly believe that a police officer must automatically read a person their Miranda rights while performing an arrest. This is false.
Miranda warnings only apply if the person is in police custody AND is being questioned by police. How do you know if you are in custody? If you have been arrested, handcuffed or told that you are not free to leave, then you are most likely in custody.
One simple way to tell is to ask the question "Am I free to go?" If not, then you may well be in custody.
Common Misconceptions about Miranda Warnings
Another popular misconception is that your case has to be thrown out if your Miranda rights are not read to you. This is not an accurate statement. If you are in custody and being questioned by a law enforcement officer without first being advised of your Miranda warnings, then a judge may disallow the use of your statement.
That does not necessarily result in an automatic dismissal...it depends on whether the case can be proven without the stricken statement...and many criminal cases can.
"You Have the Right to Remain Silent..."
Be wise! When a police officer reads you Miranda warnings it means that your statement will be used in an attempt to put you behind bars.
When you hear these warnings, immediately ask for a lawyer and then stop talking! Never speak after hearing these warnings, no matter what the police may tell you or threaten to do. Insist on a lawyer's advice, on the spot, before proceeding.
Its not a Choice Between Lying or Telling the Truth
You always have the option of not speaking. Its a choice between electing to speak or NOT electing to speak! Even if you are totally innocent, trying to explain or "giving your side" of the story will only serve to establish elements of the crime that the police are desperately seeking. Mix that with a mistaken identification, as commonly happens in criminal cases, and you have a recipe for disaster. You may well have talked yourself right into a jail cell, despite your innocence. Be wise. Say nothing!
Consult a Criminal Defense Specialist
If you are in doubt about a decision, call Attorney Dan Weisenburger right now and he'll answer your questions confidentially, with no obligation. Dan Weisenburger is a Board Certified Criminal Defense Specialist with more than 28 years of experience in the field of Criminal Law.
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