The Cohen Law Firm

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They didn't read me my rights!

Most people who have been arrested go through a series of reactions to what has just happened to them. The stages include fear, panic, hope, resignation, and anger. The nature of the arrest and the severity of the crime charged determine how long a defendant stays in any or all of these stages.

In almost every case, however, there is one constant: the anger phase. It is a very, very rare defendant who does not, at some time following arrest, become angry about the disruption, the expense, the embarrassment, and the physical pain of being arrested and put in jail. Many defendants focus their anger on what law enforcement did or did not do at the time of arrest. The most common complaint of this nature is, "They didn't read me my rights!"

The rights they are referring to, of course, are the words that make up the well known Miranda warnings. These words have been the law of the land since the Supreme Court of the United States ruled in 1966 that a defendant in custody must be informed, very specifically, about what it means to have a constitutional protection against self-incrimination. A defendant in custody who gives a statement without being warned of the consequences of that statement in the criminal prosecution which will follow arrest has a right to keep that statement out of evidence. If the defendant isn't warned about the state using what he says against him, the state can't use it against him. Fairly simple, right?

Actually, it isn't so simple. Over the last 46 years, television, movies and popular culture have created a misconception that being read Miranda warnings is a requirement for a valid arrest. The angry recollection of, "They didn't read me my rights!" actually means, "This wasn't a valid arrest and my case should be dismissed!" If only it worked that way.

Miranda warnings are not a requirement for a valid arrest. The police can take you into custody without reading you Miranda. What they can NOT do is take a statement from you -orally or in writing - without first warning you about what the state will likely do with your statement later. If you are arrested and then give a confession without being read Miranda warnings, your lawyer can keep your confession out of evidence. The arrest which led to the confession, however, would still be valid, and if the state felt they could prove the case against you without the confession, then the prosecution would continue.

There is even one more layer of confusion about Miranda warnings. Miranda protects you from making incriminating statements while you are in custody, but what exactly is being in custody? What is the moment at which you are no longer free to leave? Do you have to be in cuffs to be considered in custody? Is it necessary that you have been told you are under arrest? What if you are being detained and you aren't free to leave, but no one has told you yet that you are being charged with an offense?

The most important thing to remember is that, if you are accused of a crime, do not speak to anyone about your case without an attorney present. You wouldn't try to perform surgery on yourself. If you don't know how an engine works, you wouldn't try to fix your own car. If you have been arrested, or even if you are just being questioned, remember that you have a constitutional right to remain silent and to ask for a lawyer before answering any questions.

If they don't read you your rights, the arrest is still valid, but any statements you make while in custody can be kept out of evidence. There is something more important to remember, though, which trumps the legal analysis. Be smart and keep your mouth shut in the first place!

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