Understanding the Right to Remain Silent Understanding the Right to Remain Silent Understanding the Right to Remain Silent Posted By Salvador Phillips, PLLC || Aug 3, 2016 In most cases, the criminal process starts with a stop or an arrest. A police officer only has the right to arrest a person if they have probable cause to believe the individual committed a felony, have witnessed the individual commit a misdemeanor crime, or has found that there is a warrant for the individual’s arrest. No matter what reason the officer may have, it is important that the individual thoroughly understands their rights. Because our Phoenix criminal defense lawyers are dedicated to protecting the rights of persons throughout Arizona, we have taken the time to explain the Miranda Rights and how understanding these rights can help a person avoid an unlawful arrest and an incorrect criminal charge. Your Miranda Rights In 1966, the U.S. Supreme Court established the Miranda Rights, which state that an individual must be read the Fifth Amendment before a police officer can take them into custody. Therefore, when an individual is arrested, the law enforcement officer who performs the arrest must inform the suspect of their constitutional rights.

These rights include: The right to a lawyer The right to remain silent It is extremely important for an arrested person to consider the power of remaining silent. In many cases, law enforcement officers will ask a series of questions or make assumptions in hopes that the arrested person will admit fault or provide evidence that they were involved in a crime. Instead of speaking to the police, the arrested person should practice their right to remain silent and contact legal representation immediately. A skilled lawyer can ensure the individual’s rights are protected and that the arrested person does not become subject to unnecessary heavy fines and harsh penalties. Accused of a Crime? Contact Salvador Phillips, PLLC Today! If you were arrested or accused of a crime, we encourage you to get in touch with a Phoenix criminal defense lawyer at Salvador Phillips, PLLC right away. We can examine the details of your case and determine which details can be used to form a strategic defense for you. We understand these types of cases can be highly complex and stress inducing, and that is why we stand ready to defend your rights from beginning to end. No matter what your case may be, we have the knowledge and skills it takes to put aggressive legal defense in your corner.

Criminal Defendants' Rights | Nolo.com Criminal Defendants' Rights receive adequate representation not be tried twice for the same offense (" double jeopardy "). Here we explore some of the other hallmarks of basic criminal procedure. (For more, see What does the Bill of Rights do? ) Right to Remain Silent The Fifth Amendment to the U.S. Constitution provides that a defendant cannot "be compelled in any criminal case to be a witness against himself." In short, the defendant cannot be forced to speak. If the defendant chooses to remain silent, the prosecutor cannot call the defendant as a witness, nor can a judge or defense attorney force the defendant to testify. A civil defendant may, however, be forced to testify as a witness in a civil case . (For information on the right to remain silent outside the trial context, see The Privilege Against Self-Incrimination .) Right to Confront Witnesses The "confrontation clause" of the Sixth Amendment gives defendants the right to "be confronted by the witnesses against" them. This gives defendants the right to cross-examine witnesses—that is, the right to require the witnesses to come to court, "look the defendant in the eye," and subject themselves to questioning by the defense.

The Sixth Amendment forbids prosecutors from proving a defendant's guilt with oral or written hearsay statements from non-testifying witnesses, unless a judge concludes that the hearsay is non-testimonial. In general, statements made during ongoing emergencies (such as a call to a 911 operator reporting a crime in progress) are not testimonial. On the other hand, statements made to police officers seeking information about a past crime are testimonial. (See In Child Abuse Case, Supreme Court Narrows Right to Confront Witnesses .) Special Confrontation Rules for Child Sexual Assault Cases In recent years, legislators have been concerned about defendants who escape punishment for sexually molesting young children because the children were afraid to testify in the defendant's presence. To address this problem, many states have enacted special rules that authorize judges—in certain situations—to allow children to testify via closed-circuit television. The defendant can see the child on a television monitor, but the child cannot see the defendant. The defense attorney can be personally present where the child is testifying, and can cross-examine the child. Right to a Public Trial The Sixth Amendment guarantees public trials in criminal cases.

This is an important right, because the presence in courtrooms of a defendant's family and friends, ordinary citizens, and the press can help ensure that the government observes important rights associated with trials. In a few situations—normally involving children—the court will close the court to the public. For example, judges can bar the public from attending cases when defendants are charged with sexual assaults against children. Also, the judge may exclude witnesses from the courtroom in order to prevent a witness from influencing the subsequent testimony of another. (For further information on trial publicity, see Are Criminal Trials Always Public? ) Right to a Jury Trial The Sixth Amendment gives a person accused of a crime the right to be tried by a jury, except for petty offenses carrying a sentence of six months or less of jail time. This right has traditionally been interpreted to mean a 12-person jury. However, a jury can constitutionally consist of as few as six persons, but defendants tried by six-person juries can be convicted only if the jury is unanimous in favor of guilt. (For more information, see The Right to Trial by Jury .) In most cases, a unanimous verdict is required to convict a defendant.

In most states, a lack of unanimity is called a "hung jury," and the defendant will go free unless the prosecutor decides to retry the case. In Oregon and Louisiana, however, juries may convict or acquit a defendant on a vote of ten to two. The U.S. Supreme Court has upheld state law providing for less-than-unanimous verdicts by 12-person juries in non-death penalty cases. Potential jurors must be selected randomly from the community, and the actual jury must be selected by a process that allows the judge and lawyers to screen out biased jurors. In addition, a lawyer may eliminate several potential jurors simply because he feels that these people would not be sympathetic to his side—but these decisions (called "peremptory challenges") may not be based on the juror's personal characteristics such as race, sex, religion, or national origin. (See Jury Selection .) Right to a Speedy Trial The Sixth Amendment gives defendants a right to a "speedy trial." However, it does not specify exact time limits. Thus, judges often have to decide on a case-by-case basis whether a defendant's trial has been so delayed that the case should be thrown out.

In making this decision, judges look at the length of the delay, the reason for the delay, and whether the delay has prejudiced (harmed) the defendant's position. Every jurisdiction has enacted statutes that set time limits for moving cases from the filing of the initial charge to trial. While these statutes are very strict in their wording, most defendants cannot get their convictions reversed on the ground that these statutes were violated. (For more, see The Right to a Speedy Tria l.) Right to Be Represented by an Attorney The Sixth Amendment provides that "in all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense." If a defendant cannot afford an attorney (is "indigent"), a judge must appoint an attorney at government expense before sentencing the defendant to imprisonment. (For more detail, see Are lawyers available for defendants who can't afford to pay for one? ) Judges routinely appoint attorneys for indigents in nearly all cases in which a jail sentence is possible. Right to Adequate Representation The U.S.

Supreme Court has ruled that both indigent defendants who are represented by appointed counsel and defendants who hire their own attorneys are entitled to adequate representation—that is, to have a lawyer who does a reasonably good job at defending the defendant. Defendants are entitled to adequate representation not only at trial, but also when it comes to plea bargains . However, adequate representation is by no means perfect representation. Here are examples of claims that defendants have made to get their guilty verdicts thrown out but that appellate courts have rejected. (Note that the rulings depend on the particular facts at hand, meaning that these kinds of claims might, under different circumstances, actually establish ineffective assistance of counsel.) The attorney failed to call favorable witnesses at trial. The lawyer didn't object to the judge's mistaken instructions to jurors concerning the burden of proof. The lawyer repeatedly advised the defendant, who claimed innocence, to plead guilty. The attorney used cocaine during the time the representation took place. The attorney represented the defendant while being suspended from the practice of law for failure to pay state bar dues. On the other hand, circumstances can be sufficiently shocking to justify throwing out a guilty verdict based on an attorney's incompetence.

Judges have reversed guilty verdicts where: The attorney put a law-student intern in charge of the defense and left the courtroom while the case was going on. During closing arguments, the attorney acknowledged that the defendant was guilty of a lesser crime without first securing the defendant's approval of this tactic. During voir dire (questioning of the jury), the attorney failed to challenge two potential jurors who said they would be bothered by the defendant's failure to testify. Right Not to Be Placed in Double Jeopardy Among the clauses of the Fifth Amendment is this well-known provision: "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb." This provision, known as the double jeopardy clause, protects defendants from being put on trial more than once for the same offense. (For much more on double jeopardy, including what it means for sentencing, see The Prohibition Against Double Jeopardy .) One important exception to the rule against double jeopardy is that defendants can properly be charged for the same conduct by different sovereigns. For example, a defendant may face charges in both federal and state court for the same conduct if some aspects of that conduct violated federal laws while other elements ran afoul of the laws of the state.

Furthermore, the double jeopardy clause forbids more than one criminal prosecution growing out of the same conduct. So, for example, a defendant can be brought once to criminal court (by the government) and once to civil court (by someone who's been harmed) for the same offense. Get Help For a comprehensive understanding of the law, including how it may differ somewhat in your state, talk to an experienced criminal defense lawyer. Criminal trials are tremendously complex. But even a defendant who doesn't plan on going to trial should rely on a lawyer. You can use Nolo's trusted Lawyer Directory to find one near you. The Miranda Warning - The U.S. Constitution Online - USConstitution.net Advertisement The Constitution reserves many rights for those suspected of crime. One of the fears of the Framers was that the government could act however it wished by simply saying an individual was a suspected criminal. Many of the rights in the Constitution and the Bill of Rights , such as habeas corpus, the right to remain silent, and the right to an attorney, are designed to ensure that those accused of a crime are assured of those rights. Police were able to take advantage of the fact that not everyone knows their rights by heart.

In fact, it is likely that most citizens could name a few of their rights as accused criminals, but not all of them. The police's position was that if the accused, for example, spoke about a crime without knowing that they did not need to, that it was the person's fault for not invoking that right, even if they did not know, or did not remember, that they had that right. This was the crux of the issue in Miranda v Arizona. In 1963, Ernesto Miranda was accused of kidnapping and raping an 18-year-old, mildly retarded woman. He was brought in for questioning, and confessed to the crime. He was not told that he did not have to speak or that he could have a lawyer present. At trial, Miranda's lawyer tried to get the confession thrown out, but the motion was denied. In 1966, the case came in front of the Supreme Court. The Court ruled that the statements made to the police could not be used as evidence, since Miranda had not been advised of his rights. Since then, before any pertinent questioning of a suspect is done, the police have been required to recite the Miranda warning.

The statement, reproduced below, exists in several forms, but all have the key elements: the right to remain silent and the right to an attorney. These are also often referred to as the "Miranda rights." When you have been read your rights, you are said to have been "Mirandized." Note that one need not be Mirandized to be arrested. There is a difference between being arrested and being questioned. Also, basic questions, such as name, address, and Social Security number do not need to be covered by a Miranda warning. The police also need not Mirandize someone who is not a suspect in a crime. As for Ernesto Miranda, his conviction was thrown out, though he did not become a free man. The police had other evidence that was independent of the confession, and when Miranda was tried a second time, he was convicted again. After release from prison, Miranda was killed in a barroom brawl in 1976. The following is a minimal Miranda warning, as outlined in the Miranda v Arizona case. 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 speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense. The following is a much more verbose Miranda warning, designed to cover all bases that a detainee might encounter while in police custody. A detainee may be asked to sign a statement acknowledging the following. You have the right to remain silent and refuse to answer questions. Do you understand? Anything you do say may be used against you in a court of law. Do you understand? 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. Do you understand? If you cannot afford an attorney, one will be appointed for you before any questioning if you wish. Do you understand? 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. Do you understand? Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney present? What are Miranda rights or a Miranda warning? | Brill Legal Group, P.C. Brill Legal Group, P.C. Justice.

One Client at a Time. CRIMINAL DEFENSE • DISCIPLINARY INVESTIGATIONS & HEARINGS Home > Our Services > Criminal Defense > Criminal Defense FAQ > What are Miranda rights or a Miranda warning? What are Miranda rights or a Miranda warning? When someone mentions Miranda rights, a Miranda warning or a person being Mirandized, they are talking about the police reading a person his or her rights. These are the rights that many people are familiar with from movies and TV shows: You have the right to remain silent; anything you say can and will be used against you; and you have the right to an attorney. The name Miranda comes from the U.S. Supreme Court case Miranda v. Arizona, which determined that people who are in police custody and being interrogated have these rights. Miranda rights are extremely important — not only knowing that you have them, but also exercising them. If you are arrested, you should remain silent. Do not make any statements to police, except to say that you want to speak to your attorney. It is also important to understand that police only have to read you your rights if you are in custody and being interrogated.

If you are not in custody or police are not interrogating you, then they may choose not to read you your rights. You should still not make any statements to police and you should consult with an attorney. Other Criminal Defense FAQs: Article 31 Rights Carson Home Home Services About Us Resources Contact Us Article 31 Rights Any person subject to the UCMJ must advise the suspectl of their Article 31 rights if they suspect that person of a criminal offense & they are interrogating (questioning) the person as part of an official law enforcement investigation or disciplinary inquiry. Commanders, first sergeants & military supervisors are presumed to be acting in a disciplinary capacity when questioning a subordinate. Article 31 Rights must be given whenever there is Interrogation. Interrogation includes any formal or informal questioning in which an incrimination response is either sought or is a reasonable consequence of such questioning. Interrogation does not have to involve actual questions. Sometimes actions, if they are intended to elicit responses, are deemed to be interrogation. Once again, commanders, first sergeants and supervisors are held to an especially high standard when in doubt, give rights advisement and consult your Staff Judge Advocate.

Article 31 Rights must include: Article 31 Rights include the general nature of the suspected offense. Legal specifications are not necessary, lay terms are okay. You must be specific enough so that the suspect understands what offense you are questioning him/her about. The suspect's right to remain silent. The consequences of making a statement. Although it is not necessary that the advisement be verbatim, it is best to read the rights directly from a rights advisement card or as directed/available in your branch of service. Even though Article 31 does not include a right to counsel (that comes from the Constitution) it is listed on the rights advisement card & must be included when reading a suspect his/her rights. Rights Advisement must be understood & acknowledged by the suspect. The suspect must affirmatively acknowledge understanding of the rights, and affirmatively waive his/her rights consent to make a statement without counsel present. Consent to make a statement cannot be obtained by coercion, threats, promises, or trickery. Be cautious when advising an intoxicated person of his/her rights. If significantly drunk, he/she may be legally incapable of knowingly & voluntarily waiving his/her rights.

If the suspect equivocates over whether or not to assert his/her rights, clarify whether or not they will waive their rights. Do not proceed with questioning until any doubt is resolved. If the individual indicated a desire to remain silent, cease questioning. If the suspect requests counsel, stop all questioning. Inform Trial Defense Service. When a suspect requests counsel during an interrogation, no more questions can be asked until counsel is present. There are several complex legal rules relating to re-initiating questioning once a suspect has requested counsel. The rules vary depending on whether or not the suspect has been in continuous custody, whether or not the suspect re-initiates the questioning & whether or not you are questioning about the same or a different offense. If the individual waives his/her rights & agrees to talk, when possible: obtain the waiver in writing & have a witness available; try to get the statement in writing (handwritten is best); if, after electing to talk, the suspect changes his/her mind, stop the questioning; prepare a memorandum for the record (MFR) immediately after the session ends. Include the following in your memorandum: 1. Where the session was held. 2. What and when you advised the suspect. 3. What the suspect said. 4.

Duration of the session with inclusive hours. ADVISEMENT OF RIGHTS FOR MILITARY SUSPECTS I am __________, (first sergeant of the) _________, _________ (military installation). I am investigating the alleged offense(s) of ___________, of which you are suspected. Before proceeding with this investigation, I want to advise you of your rights under Article 31 of the Uniform Code of Military Justice. You have the right to remain silent, that is, to say nothing at all. Any statement you do make, either oral or written, may be used against you in a trial by court-martial or in other judicial, nonjudicial or administrative proceedings. You have the right to consult with a lawyer prior to any questioning and to have a lawyer present during this interview. You have the right to military counsel free of charge. In addition to military counsel, you are entitled to civilian counsel of your own choosing at your own expense. You may request a lawyer at any time during this interview. Have you previously requested counsel after advisement of rights? (If the answer is yes, stop. Consult your JAG Office before proceeding). If you decide to answer questions during this interview, you may stop the questioning at any time.

Do you understand your rights? Do you want a lawyer? (If the answer is yes, cease all questioning). Have you already consulted an attorney about this matter? (If the answer is yes, stop questioning). Are you willing to answer questions? Do you understand that your are free to end this interview at any time? What Are Your Miranda Rights? Ask a Question What Are Your Miranda Rights? The wording used when a person is read the Miranda Warning, also known as being ‘Mirandized,’ is clear and direct: “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?” An Explanation of Your Rights Questions? Click here to send us your questions today.

Some police departments in Indiana, New Jersey, Nevada, Oklahoma, and Alaska add the following sentence: “We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court.” The suspect must give a clear, affirmative answer to this question. Silence is not acceptable as waiving these rights because the arrestee may not understand or may not speak English as his or her first language. If the Miranda Warning must be translated to the suspect, that translation is usually recorded. Invoking Your Miranda Rights If the individual indicates in any manner, at any time prior to or during questioning, that he or she wishes to remain silent , the interrogation must cease. If the individual states that he or she wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him or her present during any subsequent questioning. When The Police Must Read Your Rights It is important to note that police are only required to Mirandize a suspect if they intend to interrogate that person under custody. Arrests can occur without the Miranda Warning being given.

If the police later decide to interrogate the suspect, the warning must be given at that time. Their vigilance to this rule means less chance of a case being overturned in court due to poor procedure on their part. If public safety is an issue, questions may be asked without the defendant being Mirandized, and any evidence obtained may be used against the suspect under these circumstances. The Miranda Warning is all about questioning and being protected from self-incrimination under the Fifth Amendment, not being arrested. The person arrested must still answer questions asked about their name, age, address, etc. They can be searched in order to protect the police officer. Also, a confession given before a suspect has been read the Miranda Warning may find that confession entered as evidence in court. If you have been Mirandized and you waive your rights, meaning you wish to speak to police freely without an attorney present, you can change your mind at any time and ‘plead the fifth,’ meaning you no longer wish to answer questions, or that you have changed your mind and wish to have an attorney present after all. In some states, juveniles have the right to remain silent without his or her parent or guardian present.

US military branches provide for the right against self-incrimination by providing a form that informs the suspect of the charges and their rights. They are required to sign the form. Legal Guidance Rights of Criminal Defendants | LegalMatch Law Library Rights of Criminal Defendants Most Common Defense and Criminal Law Issues Criminal Law Find a category or issue not listed What Are the Rights of Criminal Defendants? When a person is charged with a crime, they become a criminal defendant. The government must prove guilt beyond a reasonable doubt before convicting and punishing a defendant for a crime. The United States Constitution provides criminal defendants with many constitutional rights . These rights control how the government investigates, prosecutes and punishes criminal behavior. These include rights provided in the fourth, fifth, sixth, and eighth amendments. Fourth Amendment Rights The Fourth Amendment protection against unreasonable searches and seizures: Unreasonable Searches and Seizures: The United States Constitution requires probable cause for searches and seizures . The rationale is that the government may not use illegally obtained evidence against you in court. Although warrants are needed for a search or seizure, there are exceptions to the rule.

Fifth Amendment Rights The Fifth Amendment protects against self-incrimination (the right to remain silent) and double jeopardy: The Right to Remain Silent: Criminal defendants have the right to remain silent. This right protects the defendant from self-incrimination , commonly known as Miranda Rights , during arrest and at trial. Criminal defendants also have the right to confront accusers and to testify on their own behalf. The Right Against Double Jeopardy: The United States Constitution prohibits the government from retrying a defendant for the same crime. This is called double jeopardy . Besides criminal charges, a criminal defendant can also face civil claims . Sixth Amendment Rights The Sixth Amendment provides criminal defendants with the right to legal representation, the right to a speedy trial, and the right to confront witnesses: The Right to Representation: Every criminal defendant has the right to adequate legal representation . If the defendant cannot afford a lawyer, the government will provide one. Keep in mind that adequate representation does not mean a right to perfect legal counsel. It does protect the defendant from serious legal blunders made by his lawyer. The criminal defendant also has the right to decline legal representation and represent himself. The Right to a Speedy Trial: Criminal defendants have the right to a speedy public trial .

This ensures that the government will not conduct secret hearings that might violate your individual rights. On occasion however, a court will close a hearing to protect the identity of a victim (usually a minor.) The Right to a Public Jury Trial: A criminal defendant also has the right to be tried by a jury. The form of the jury varies from state to state. All juries consist of members of the community randomly called by the court and selected by the lawyers for the prosecution and the defense. Additionally, criminal defendants have the right to a speedy trial. This right protects defendants from sitting in jail for long periods of time before their guilt has been established. The Right to Confront Witnesses: The Sixth Amendment gives the accused the right to cross-examine or confront witnesses. This gives the defendant the ability to counter any testimony presented against him. This also helps the jury determine whether the witnesses are reliable. Additionally, this right allows the defendant to face the witness in person. Only in rare cases may the witness avoid the obligation of having to confront the defendant.

Eighth Amendment Rights The Eighth Amendment provides criminal defendants with the right to a reasonable bail and the right to not be subjected to cruel and unusual punishment: The Right to a Reasonable Bail: Criminal defendants may leave the holding cell if bail is given to ensure that the defendants return for the trial. If the court does, the bail must not be excessive with regards to the severity of the crime and the person’s likelihood of fleeing. The Right to Not Be Subjected to Cruel and Unusual Punishment: The Eighth Amendment prohibits cruel and unusual punishments if the defendant is convicted. This right guarantees prisoners access to basic medical treatment. It also guarantees that sentences are not disproportionate to their crime. For example, someone convicted of petty theft should not receive a sentence of life imprisonment without parole or death. Should I Get an Attorney If I Am Charged with a Crime? Yes. Legal representation can be crucial if you are charged with a crime. Criminal charges are life changing and it is in your best interest to get counsel. An experienced defense attorney can help protect your rights and represent you in court.

Custodial Interrogation legal definition of Custodial Interrogation Custodial Interrogation legal definition of Custodial Interrogation Custodial Interrogation Custodial Interrogation Questioning initiated by law enforcement officers after a person is taken into custody or otherwise deprived of his or her freedom in any significant way, thus requiring that the person be advised of his or her applicable constitutional rights. In the landmark decision miranda v. arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the U.S. Supreme Court set standards for law enforcement officers to follow when attempting to interrogate suspects whom they hold in custody. Suspects who are subject to custodial interrogation must be warned that they have the right to remain silent; that any statements that they make may be used as evidence against them; that they have the right to an attorney; and that if they cannot afford an attorney, one will be appointed for them prior to any questioning, if they so desire. Under Miranda, unless those warnings are given, no evidence obtained during the interrogation may be used against the accused.

Since Miranda was decided, state and federal courts have struggled with a number of issues with regard to its application, including: when a suspect is deemed to be in custody and thus entitled to the warnings required by Miranda; and when a suspect will be deemed to have waived the right to have an attorney present during questioning. Some recent decisions by the U.S. Supreme Court have attempted to answer these difficult questions. In Stansbury v. California, 511 U.S. 318, 114 S. Ct. 1526, 128 L. Ed. 2d 293 (1994), the Court considered whether a police officer's subjective and undisclosed opinion concerning whether a person who had been questioned had been a suspect was relevant in determining whether that person had been in custody and thus entitled to the Miranda warnings. In 1982, Robert Stansbury was convicted of first-degree murder, rape, Kidnapping , and a lewd act on a child under the age of 14.

The morning after ten-year-old Robyn Jackson had disappeared from a Baldwin Park, California, playground, a witness in Pasadena, California, had observed a large man leaving a turquoise car and throwing something into a nearby flood-control channel. The witness called the police, who discovered Jackson's body in the channel. She had been raped, strangled, and struck on the head with a blunt instrument. The police later learned that Jackson had talked to two ice-cream truck drivers, one of whom was Stansbury, shortly before she disappeared. Officers went to Stansbury's home and asked Stansbury to go to the police station to answer some questions concerning their investigation into Jackson's murder. Stansbury agreed and accepted a ride to the station in a police car. At the police station, Stansbury was questioned about his whereabouts and activities on the day Jackson's body was discovered. The police did not read him the Miranda warnings at the time. Stansbury told the police that he had talked to the girl, that he had returned to his trailer a few hours later, and that he had left around midnight in his roommate's turquoise car. The car matched the description given by the witness.

Stansbury also admitted that he previously had been convicted of rape, kidnapping, and Child Molestation . The detective inter-viewing Stansbury then terminated the conversation and read Stansbury the Miranda warnings. Stansbury was later charged with first-degree murder and other crimes. At a Pretrial Conference , Stansbury moved to suppress all of the statements that he had made at the station, as well as the evidence that had been discovered as a result of those statements. The trial court denied his motion, ruling that Stansbury had not been in custody—and thus that he had not been entitled to the Miranda warnings—until he had mentioned the turquoise car. Before that point in the interview, the court reasoned, Stansbury had not been considered a suspect. Based on that conclusion, the trial court permitted introduction of the statements that Stansbury had made before he had mentioned the car. Stansbury was convicted on all charges and was sentenced to death for first-degree murder. On appeal, the California Supreme Court affirmed Stansbury's conviction, rejecting the "in-custody" claim that he had raised in the trial court.

The state supreme court, applying an in-custody legal standard based on whether the investigation has focused on the subject, agreed with the trial court's conclusion that suspicion had focused on Stansbury only after he mentioned driving the turquoise car on the night of the crime. Therefore, the court held, Stansbury had not been subject to custodial interrogation before that time, and in turn Miranda warnings had not been required, and his statements were admissible. The U.S. Supreme Court reversed and remanded the case. In a per curiam decision (a brief, unanimous, and unsigned opinion), the Court held that "an officer's subjective and undisclosed view concerning whether the person being interrogated is a suspect is irrelevant to the assessment [of] whether the person is in custody." Instead, according to the Court, the key inquiry should be whether the individual had been placed under formal arrest, or whether the restraint placed on the individual's freedom of movement rose to the level of a formal arrest.

The Court further noted that the "initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogation officers or the person being questioned." So long as an officer's subjective view that an individual being questioned is a suspect is not disclosed to the individual, the officer's view has no bearing on the in-custody issue. If the officer's knowledge or beliefs are communicated to the individual being questioned, the Court stated, that knowledge or those beliefs are relevant only to the extent that the individual "would gauge the breadth of his or her 'freedom of action.'" But a statement from the officer that the individual is the prime suspect, in and of itself, is not "dispositive of the custody issue." In Stansbury, the California Supreme Court had not analyzed the in-custody issue based on these principles. Thus, the U.S. Supreme Court remanded the case to the trial court to determine whether the objective facts surrounding Stansbury's interrogation supported the trial court's original conclusion that Stansbury had not been in custody before he mentioned the turquoise car. The high court tackled another difficult Miranda issue in Davis v. United States, 512 U.S.

452, 114 S. Ct. 2350, 129 L. Ed. 2d (1994), when it considered the circumstances under which a suspect who was subject to custodial interrogation has validly waived the right to have an attorney present during questioning. In an earlier decision, Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981), the Court had held that such a waiver must be "knowing and intelligent." Furthermore, the Court had made clear in Edwards that police officers must immediately stop questioning a suspect who clearly asserts the right to have legal counsel present during the interrogation. Edwards applied only when a suspect clearly asserted the right to have counsel present; it did not provide guidance to officers when a suspect made an ambiguous or equivocal request for counsel. Addressing that situation, some jurisdictions had held that any mention of counsel, no matter how ambiguous, required that questioning cease. Other courts had attempted to define a threshold standard of clarity, under which comments that fell below the required clarity did not invoke the Right to Counsel .

Still other jurisdictions had ruled that questioning must cease upon any mention of counsel, but officers were permitted to ask further, narrow questions to clarify whether the suspect desired an attorney. In Davis, the U.S. Supreme Court settled the issue, holding that officers are not required to cease questioning if a suspect makes an ambiguous request for counsel. Questioning may continue until the suspect makes an "unambiguous" request for an attorney. Furthermore, the Court held, police officers have no duty to seek clarification of an ambiguous request. The case began when Robert Davis, a member of the U.S. Navy, became a suspect in the murder of another sailor at the Charleston, South Carolina, naval base. Davis was interviewed by the authorities and informed of his Miranda rights. He waived, orally and in writing, his right to remain silent and his right to counsel. But after talking with agents for 90 minutes, he stated, "Maybe I should talk to a lawyer." One of the agents asked Davis whether he wanted an attorney, or whether he was just making a comment. Davis replied, "No, I'm not asking for a lawyer." After a short break, the agents reminded him of his right to remain silent and then resumed the questioning.

An hour later, Davis said, "I think I want a lawyer before I say anything else." The agents then stopped the interview. At his general Court-Martial , Davis maintained that the statements made during the interview after his ambiguous statement concerning the need to talk with a lawyer should not be admitted. The court ruled that the ambiguous statement had not been in the form of a request for an attorney, and thus the statements made after it were admissible. Davis was found guilty of unpremeditated murder and sentenced to life imprisonment. His conviction was affirmed by the military appellate court. The U.S. Supreme Court also affirmed the conviction. Writing for the majority, Justice Sandra Day O'Connor noted that none of the Court's previous decisions addressing Miranda issues required that questioning of a suspect be terminated if the suspect makes an ambiguous or equivocal request for counsel.

To gain Miranda protection, she maintained, a suspect must "unambiguously request counsel," and the request must "articulate [the suspect's] desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." She further stated that requiring questioning to stop when a suspect makes ambiguous references to requesting an attorney would transform the Miranda protections into "wholly irrational obstacles to legitimate police investigative activity." Police officers, she maintained, would be forced to end questioning even if the suspect does not want an attorney, thus hampering effective law enforcement. Permitting a mere reference to an attorney to end an interrogation would require police officers to "make difficult judgment calls whether the suspect in fact wants a lawyer even though he hasn't said so, with the threat of suppression if they guess wrong." In a separate opinion, Justice david h. souter, joined by Justices harry a. blackmun, John Paul Stevens , and Ruth Bader Ginsburg , concurred in the judgment affirming Davis's conviction. In Souter's view, officers could constitutionally pose questions to clarify a suspect's ambiguous reference for counsel, as was done in Davis.

Souter believed that the statements given by Davis, after the counsel issue was clarified, indicated that Davis did not want an attorney. Nevertheless, Souter disagreed with the Court's ruling that the agents could entirely disregard Davis's references to wanting one. He argued that, like the agents in Davis, the Court should adopt a rule barring officers from further questioning until they have determined whether a suspect's ambiguous statement was meant as a request for an attorney. According to Souter, a "timid or verbally inept subject" might not understand what is required in order for him or her to stop the interrogation and to consult with an attorney. If the suspect understands that a request has been ignored, he or she may not object further and may see "confession (true or not) as the only way to end [the] interrogation." The Future of Miranda Miranda and its progeny have long served as a whipping post for politicians, legal commentators, and others who perceive the decision as "coddling criminals." They argue that the Miranda warnings impede police officers from efficiently and effectively doing their jobs by adding additional layers of unnecessary procedure to the law enforcement process.

Miranda critics also maintain that the police are punished, and that society is harmed, when defendants are set free, because key evidence is suppressed after being obtained in violation of the Fifth Amendment's prohibition against un-Mirandized confessions. Moreover, Miranda critics contend that criminal suspects seldom fully understand the meaning or importance of the rights recited to them. Finally, critics cite studies indicating that the Miranda decision has had little effect in reducing the number of confessions and requests for lawyers made by suspects in custody. In 1999, the U.S. Court of Appeals for the Fourth Circuit fueled long-standing speculation that Miranda would be overruled when it held that the admissibility of confessions in federal court is governed not by Miranda, but by a federal statute enacted two years after Miranda. The statute, 18 U.S.C.A. § 3501, provides that a confession is admissible if voluntarily given, with the voluntariness of each confession being evaluated by the "totality of the circumstances" on a cases-by-case basis, without any requirement that the defendant be Mirandized.

Congress enacted the statute to overturn Miranda, the Fourth Circuit wrote, and Congress had the authority to do so pursuant to its authority to overrule judicially created rules of evidence that are not mandated by the Constitution. United States v. Dickerson, 166 F. 3d 667 (4th Cir. 1999). The U.S. Supreme Court reversed. In a 7-2 opinion authored by Chief Justice william rehnquist, the Court wrote that whether or not it agreed with Miranda, the principles of Stare Decisis weigh heavily against overruling it then. While the Court has overruled other precedents when subsequent cases have under-mined their doctrinal underpinnings, that has not happened to the Miranda decision, which the Court said "has become embedded in routine police practice to the point where the warnings have become part of our national culture." Although a few guilty defendants may sometimes go free as the result of the application of the Miranda rule, the Court observed, experience shows that the totality-of-the-circumstances test set forth in Section 3501 is more difficult than Miranda for law enforcement officers and courts to apply in a consistent manner. Dickerson v.

United States, 530 U.S. 428, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000). The Court said that a contrary conclusion is not required by the fact that it has subsequently made exceptions to the Miranda rule. No constitutional rule is immutable, much less immune from the sort of refinements Miranda has undergone to adapt to the needs and realities of law enforcement. Moreover, the Court emphasized, these exceptions have reduced some of the law enforcement inefficiencies that Miranda critics were predicting would undermine the efficiency of criminal investigations, as the Miranda warnings are now often provided in a rote and perfunctory manner during arrest and custodial interrogation.

"If anything," Rehnquist wrote, "subsequent cases have reduced the impact of the Miranda rule on legitimate law enforcement while reaffirming the decision's core ruling that unwarned statements may not be used as evidence in the prosecution's case in chief." Dickerson surprised many observers, not only because the Court declined to overrule Miranda, but also because Chief Justice William Rehnquist authored the opinion upholding Miranda, even suggesting that Miranda had become so "embedded" in the nation's Jurisprudence as to be unlikely to be over-turned in the foreseeable future. Most observers consider Rehnquist to be one of the Court's more conservative members. His opinions are frequently joined by fellow conservatives, Justices Antonin Scalia and Clarence Thomas , both of whom dissented in Dickerson. On any number of other issues, civil libertarians have assailed the chief justice for what they regard as his narrow reading of the Bill of Rights . Dickerson both tempered that criticism and quieted speculation about the future of Miranda. Further readings Miranda Rights - FindLaw FindLaw » Learn About The Law » Criminal Law » Criminal Rights » Miranda Rights Miranda Rights The famous Miranda rights for criminal suspects, often heard recited in movies or on TV, came from the landmark U.S.

Supreme Court case of Miranda v. Arizona and are based on the Fifth Amendment. The ruling in Miranda and subsequent cases provide criminal suspects with a number of rights when being questioned by law enforcement officers. Click on the links below for in-depth information on just what the Miranda rights are, when those rights apply, plus more information on the Fifth Amendment and police questioning. Miranda v. Arizona The Miranda rights take their name from the Supreme Court case Miranda v. Arizona. The warnings have been so commonly repeated in film and on TV that many non-attorneys can recite them from memory. 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 appointed to you. Miranda came out of a group of cases involving confessions given by particularly vulnerable defendants, many of whom were indigent and documented to have little or no education. The court found that although there was no evidence of physical coercion or patent psychological ploys there was, regardless, a failure to inform the accused of their rights that prevented their confessions from truly being the product of free choice.

The recitation of the traditional Miranda warnings is only part of the obligation, however. The warnings must be both given and understood by the accused. Miranda Threatened Although ubiquitous, the Miranda rights are not entirely secure from attack. As recently as 1999 the U.S. Supreme Court heard a case that threatened to undermine the Miranda holding. In Dickerson v. United States the District Court had suppressed the statement by the accused because it was made before Miranda warnings were given. The Court of Appeals found that a post-Miranda statute, part of the Omnibus Crime Control Act of 1968 that made all evidence voluntarily given admissible. The Court of Appeals felt that the Act, created by Congress, held precedence over the court's previous interpretation. The U.S. Supreme Court felt differently and held that Congress couldn't overrule the court's interpretation of constitutional protections. As a result, Miranda continues to remain the governing authority regarding the admissibility of statements made during custodial interrogation. Invoking and Waiving Miranda Rights To gain the full protection of the right to remain silent the suspect must unequivocally invoke the right. Just remaining silent does not mean that an interrogation has to stop.

If the right to remain silent isn't clearly invoked the police can continue or repeat attempts to question a suspect. Even when the right is properly invoked it can subsequently be waived. Stating that you invoke your right to remain silent, and then proceeding to make voluntary statements will frequently result in a waiver of the previously-invoked rights. Those accused of a crime should be careful to invoke their Miranda right to silence and be careful to avoid an inadvertent waiver of these rights. The invocation must be clear and unwavering. Learn About Miranda Rights The law, lawyers, and the court. June 19 2013 6:05 PM You Don’t Have the Right to Remain Silent The Supreme Court’s terrible—and dangerous—ruling this week on the Fifth Amendment. By Brandon L. Garrett Nick Yarris poses for a portrait session amid the "After Innocence" interviews at the Starbucks Sundance Interview Headquarters during the 2005 Sundance Film Festival on Jan. 23, 2005, in Park City, Utah. Photo by Frazer Harrison/Getty Images On Monday, in a case called Salinas v. Texas that hasn’t gotten the attention it deserves, the Supreme Court held that you remain silent at your peril.

The court said that this is true even before you’re arrested, when the police are just informally asking questions. The court’s move to cut off the right to remain silent is wrong and also dangerous—because it encourages the kind of high-pressure questioning that can elicit false confessions. Here are the facts from Salinas: Two brothers were shot at home in Houston. There were no witnesses—only shotgun shell casings left at the scene. Genovevo Salinas had been at a party at that house the night before the shooting, and police invited him down to the station, where they talked for an hour. They did not arrest him or read him his Miranda warnings. Salinas agreed to give the police his shotgun for testing. Then the cops asked whether the gun would match the shells from the scene of the murder. According to the police, Salinas stopped talking, shuffled his feet, bit his lip, and started to tighten up. At trial, Salinas did not testify, but prosecutors described his reportedly uncomfortable reaction to the question about his shotgun. Salinas argued this violated his Fifth Amendment rights: He had remained silent, and the Supreme Court had previously made clear that prosecutors can’t bring up a defendant’s refusal to answer the state’s questions.

This time around, however, Justice Samuel Alito blithely responded that Salinas was “free to leave” and did not assert his right to remain silent. He was silent. But somehow, without a lawyer, and without being told his rights, he should have affirmatively “invoked” his right to not answer questions. Two other justices signed on to Alito’s opinion. Justice Clarence Thomas and Justice Antonin Scalia joined the judgment, but for a different reason; they think Salinas had no rights at all to invoke before his arrest ( they also object to Miranda itself ). The upshot is another terrible Roberts Court ruling on confessions. In 2010 the court held that a suspect did not sufficiently invoke the right to remain silent when he stubbornly refused to talk, after receiving his Miranda warnings, during two hours of questioning. Now people have to somehow invoke the right to remain silent even when they’re not formal suspects and they haven’t been heard the Miranda warnings. As Orin Kerr points out on the Volokh Conspiracy, this just isn’t realistic .

Advertisement The court’s ruling in Salinas is all the more troubling because during such informal, undocumented, and unregulated questioning, there are special dangers that police may, intentionally or not, coax false confessions from innocent suspects. I have spent years studying cases of people exonerated by DNA testing. A large group of those innocent people falsely confessed —and many supposedly admitted their guilt even before any formal interrogation. Take the case of Nicholas Yarris , who was exonerated by DNA testing in 2003, after 20 years in prison. He had been convicted and sentenced to death in Pennsylvania for the murder of a woman found raped, beaten, and stabbed near her abandoned Chrysler Cordoba. Get Slate in your inbox. When informally questioned, police said, Yarris volunteered that he knew the victim had been raped, and that the victim’s Chrysler had a brown “landau” roof (a vinyl fake convertible look). That was a striking detail, especially since the police had kept it out of the press. No tape was made of the interrogation. The police didn’t even produce notes. And now that DNA has cleared Yarris, we know his confession was false, and that he must not have volunteered the fact about the car roof at all.

The Supreme Court’s decision in Salinas encourages the kind of loosey-goosey, and easily contaminated, police questioning that led to Yarris’ wrongful conviction. Salinas may very well have been guilty of the two murders. But in many cases, as in this one, there are no eyewitnesses and not much other evidence of guilt: That is why the police may desperately need a confession. And that makes it crucial for them to handle interrogations and confessions with the utmost care. The court appreciated none of the pressures police face, and how they can squeeze an innocent suspect. Alito and the other conservatives were not troubled that there was no video to confirm that Salinas was in fact uncomfortable as well as silent. If Salinas had answered the question by exclaiming that he was innocent, could police have reported that he sounded desperate and like a liar? The court’s new ruling puts the “defendant in an impossible predicament. He must either answer the question or remain silent,” Justice Stephen Breyer said in dissent (joined by the other three liberal-moderates).

“If he answers the question, he may well reveal, for example, prejudicial facts, disreputable associates, or suspicious circumstances—even if he is innocent.” But if he doesn’t answer, at trial, police and prosecutors can now take advantage of his silence, or perhaps even of just pausing or fidgeting. Questions first, rights later is the approach the court’s majority now endorses. And by giving the police more incentive to ask questions informally, the new ruling will also undermine the key reform that police have adopted to prevent false confessions: videotaping entire interrogations. Why not try to trap a suspect before the camera starts rolling? In only a few cases like Yarris’ will there be DNA to test. The likely result of the court’s embrace of shoddy interrogation tactics: more wrongful convictions. Brandon Garrett is the Justice Thurgood Marshall Distinguished Professor of Law at the University of Virginia School of Law. He is working on a new book, The Triumph of Mercy: How the Demise of the Death Penalty Can Revive Criminal Justice.

Question: In the U.S., what group of rights include the right to remain silent and the right to an attorney?
Answer: Miranda Rights