Police Officers generally believe that suspects are more likely to speak with them voluntarily in the absence of a Miranda warning. Thus, police officers have an incentive not to give the warning. One way they may attempt to evade the Miranda rule is by delaying the arrest of a suspect until after they’re through with the questioning. If an officer can convince a judge that the officer was engaged only in general questioning and would have let the suspect walk away had the suspect chosen to do so anything the suspect says can be used against the suspect at trial despite the lack of Miranda warnings.
WILL THE CHARGES AGAINST ME BE AUTOMATICALLY DISMISSED IF THE POLIE QUESTIONED ME WITHOUT ADVISING ME OF MY MIRANDA RIGHTS?
No. One popular misconception about the criminal justice system is that a case has to be thrown out of court if the police fail to give the Miranda warning to people they arrest. What Miranda says is that the warning is necessary if the police interrogate a suspect in custody and want to offer what he or she says into evidence at trial. This means that the failure to give the Miranda warning is utterly irrelevant to the case if:
- the suspect is not in custody
- the police do not interrogate the suspect, or
- the police do interrogate the suspect, but the prosecution does not try to use the suspect’s responses as evidence.
In essence, if the prosecution can win its case without using the improperly obtained statements, a Miranda violation will not cause dismissal of the case.
AFTER I’M ARRESTED IS IT EVER GOOD IDEA TO TALK TO THE POLICE?
Not without talking to a lawyer first. Talking to the police is almost always hazardous to the health of a defense case, and defense attorneys almost universally advise their clients to remain silent until the attorney has assessed the charges and counseled the client about case strategy.
HOW DO I ASSET MY RIGHT TO REMAIN SILENT OR REQUEST A LAWYER IF I AM BEING QUESTIONED BY THE POLICE?
Suspects do not need to use a precise set of words to indicate that they want to remain silent. Arrestees may invoke their Miranda rights by saying things like the following:
- “I don’t want to talk to you; I want to talk to an attorney.”
- “I refuse to speak with you.”
- “I claim my Miranda rights.”
If the police continue to question an arrestee who says anything like the above, they have violate Miranda. As a result, nothing the arrestee says after that point is admissible in evidence. Even though they don’t have to mention the Miranda case or use a particular phrase to invoke their rights, suspect who wants to prevent police questioning have to speak up and assert their desire to remain silent. If the suspects fail to tell the police that they want to remain silent or talk to a lawyer, the police have the right to question them.
Police officers arrest Sy Lentz for murder and advise him of his Miranda rights. When Sy remains silent, the officers question him. After three hours of questioning, Sy answers “Yes” to an officer’s question about whether he had prayed for forgiveness for shooting the victim. The prosecutor can offer the question and Sy’s response into evidence at trial to prove that Sy is quilty of murder. Sy did not demand a lawyer or tell the police that he refused to talk to them. Sy’s silence allowed the police to continue to question him, his eventual answer is admissible at trial.