By Chris Hendricks, JD
The phrase is so familiar to us all: “You have the right to remain silent.” Most are even able to repeat the remaining rights without much thought or hesitation. The Miranda Warning has been recited by countless law enforcement officers and television actors for going on five decades. But what is not so clear to those not educated in the finer points of the law is just when the warning must be given by the police.
FALSE: The police must advise every arrested person of the Miranda Warning.
THE TRUTH: The police are never required to advise anyone of his or her Miranda rights. If a police officer arrests a person and never speaks even one sentence of the warning, that arrest is still a valid arrest. The Miranda Warning is not mandatory.
There are two magic words associated with the Miranda Warning: custodial interrogation. Custodial has been interpreted to mean that a reasonable person would not feel free to leave a particular situation or setting. If a police officer is conducting an investigation, and tells a person that he or she is not free to leave, then for purposes of the Miranda Warning, that person is being detained; or to use the key word, in custody. An interrogation occurs when a person is being asked questions which are likely to illicit an incriminating response. The question “what is your address?” is most likely not interrogatory. However, “did you shoot the victim?” may result in an incriminating response, and thus would be considered part of an interrogation.
Once a police officer is engaged in a custodial interrogation of a suspect, the officer must advise that person of the Miranda Warning, right? WRONG. Only if the officer intends for that person’s statements to be used as evidence against him or her should the officer advise the person of the rights. If the officer obtains information that is incriminating from the suspect, and the warning was never spoken prior to those incriminating statements, then the statements may be excluded from the case-in-chief, or initial presentation of evidence, at the trial. There is no other recourse. Statements still may be used to impeach the person’s credibility on cross-examination if the person testifies in his or her defense.
As you can see, the Miranda Warning is not as powerful as many believe it to be. It is very narrowly applied and does not always guarantee that incriminating statements will never be heard in a court of law. If you are arrested, do not expect to be advised of your Miranda rights. You will likely be disappointed.
*This content is for informational purposes only and not intended to constitute legal advice, is not a substitute for professional legal counsel, and does not create an attorney-client relationship. This is for general knowledge and should not be relied upon for specific legal situations.
Chris Hendricks is an attorney in Murray, Kentucky. A native of Murray, he earned a Bachelor of Arts from Murray State University. Chris was employed in law enforcement for 11 years before pursuing a career in the practice of law. After earning his law degree from Southern Illinois University School of Law, Chris received a license to practice law in Kentucky in 2014. He focuses on criminal defense, appeals, personal injury and family law. He resides in Murray with his wife. They have two daughters, ages 22 and 19.
