“They didn’t read me my rights. They have to dismiss my case, right?” This is a common refrain from the accused. Unfortunately, the answer is almost certainly “no.” This is super common misunderstanding that people have about their constitutional criminal rights. People mistakenly believe that because the police did not read them their [Miranda] rights, the case must be “thrown out of court.”[i] Sadly, this is not how it works.
The typical Miranda warnings state, “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.”
There are four main points: (1) You have the right to remain silent; (2) Anything you say can and will be used against you in a court of law; (3) You have the right to speak to an attorney, and to have an attorney present during any questioning; and (4) If you cannot afford a lawyer, one will be provided for you at government expense.
Let me break this down further for you and explain the purpose of these prophylactic protections.
The right to remain silent.
The Fifth Amendment reads, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” (Ratified 1791)
After the ratification of the U.S. Constitution, the new citizens of the United States fearing that the federal government might become too strong and return to the old habits of the Crown demanded their coveted rights be enshrined in the establishing documents. The new citizens also believed that Article I and II of the Constitution were not enough to protect their rights. These citizens demanded a “Bill of Rights” to outline the parameters of their rights.[ii] Obviously, the people at the time of the Bill of Rights understood the meaning of their rights better than contemporary society does now.[iii] At the time of the revolution, it was not uncommon for British Troops to do all sorts of nasty things to the colonists in the name of justice.[iv] In response, the Madison fashioned a Bill of Rights a patterned after George Mason’s Virginia Bill of Rights. And the rest is history.
Anything you say can and will be used against you.
This is an understanding. It is also traditional rule of evidence. Typically, an out of court statement (offered to prove the truth of the matter asserted) is hearsay and not admissible in any court as positive evidence.[v] Statements of the accused (because they are a party to the action) are an exception to the hearsay rule and admissible as admissions of a party opponent (and can be offered to prove a crime or an element of a crime).
You have a right to an attorney.
The Sixth Amendment states, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” (1791)
The Sixth Amendment outlines that anyone charged or suspected of a crime has the right to an attorney to assist in their defense. The admonition from Miranda warnings provides an outright and explicit warning to the detained person that questioning is about to begin and whatever they say in response to that questioning may be used against them. It further points out that you might want to speak with an attorney before you speak with the police (because you may say something that can be used to prosecute you.)
Keep in mind, as the potential suspect, you have no idea what the police are looking for when they are questioning you. It is not they outline the interview before they start. It is always better to politely defer, tell them you do not want to speak with them, and request an attorney.[1] If after consultation with a criminal defense attorney, then you and the attorney can make a decision about speaking with the authorities.[vi]
If you cannot afford an attorney, one will be appointed free of charge.
This protection comes from the Sixth Amendment and enshrined in the holding of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).
The next step in the Miranda warnings requires an action on your part: do you want to waive (or give up these rights) and speak with me without an attorney? Or do you want to remain silent and protect yourself.
Here is the crux… the Miranda warnings are simply an informed warning. Knowledge is power if you know what to do with it. The idea is this- once you are warned, if you waive (give up the rights outlined in the warnings) then you did so under the idea of informed consent (and the waiver is then deemed to be “knowingly, intelligently, and voluntarily” done. This is one of the most important legal decisions you may ever make – why not speak to an attorney before doing it?
Additionally, if you are taken into custody and not free to leave and disregard law enforcement and they read you Miranda, then it is more probable than not that you are going to be arrested. YOU CANNOT USUALLY TALK YOURSELF OUT OF BEING ARRESTED (SO DO NOT TRY. JUST DO NOT DO IT). This also includes any time you spend in a detention or jail facility. All the calls are monitored and recorded. ANYTHING YOU SAY ON THE PHONE OR VIDEO not to an attorney is RECORDED and may be used against you. SO DO NOT DO IT. I understand and appreciate that it is not fair, but this is our system.
I understand and appreciate that it sucks, no one wants to be arrested. No one. But do not exacerbate the problem by adding evidence against yourself. BEST ADVICE – SPEAK TO ATTORNEY FIRST (even if it takes several days because of the system). After you are arrested, if you cannot hire an attorney, the court will appoint one and you can speak to that attorney to discuss your case and how to defend yourself.
As a three-time board-certified criminal trial attorney and experienced criminal appellate attorney, there is not a whole lot that can be done usually to help a defendant who has provided a complete confession, admission, or statement. The U.S. Supreme Court has concluded rightfully so that this is massively powerful evidence against a defendant. Although every case is different, why assist in your own prosecution? Do yourself a favor and do not say anything. It will be the toughest, scariest thing you’ve ever done to protect yourself.
Anthony Candela is the Trial Dog and a Board-Certified attorney. He opened the Candela Law Firm, P.A. in 2014 and handles criminal trials and appeals (as well as estate planning, wills, and trusts). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. In the federal system, he is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #thetrialdog
If you are looking for representation in a criminal matter, we believe we can help you. Please contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 to discuss your case.
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No. 21-00* Miranda Warnings
For more information about Miranda v. Arizona from the U.S. Courts click the following link https://www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summary-miranda-v-arizona
For more information about the U.S. Constitution and its amendments click the following link https://constitution.congress.gov/
For more information about the U.S. Declaration of Independence click the following link https://www.archives.gov/founding-docs/declaration-transcript
[1] This is the key. REQUEST AN ATTORNEY. And do not take any nonsense from the law enforcement. DO NOT SPEAK WITH AN ATTORNEY PRESENT. Law enforcement sometimes will hem and haw that they do not have an attorney that they can get there to speak with you and that it will be sometime before one can get there. JUST TELL THEM YOU’LL WAIT.
[i] While the writer understands the colloquial phrase “thrown out of court” to mean dismissed, the saying has been perpetrated by television and radio for years. Cases are actually “thrown out,” but they are dismissed.
[ii] Lesley Kennedy 9 Sept. 2019 https://www.history.com/news/bill-of-rights-constitution-first-10-amendments-james-madison
[iii] Think of it this way. At the time of the revolution, many Americans understood their rights in terms of the language at that time. Fast forward 50 years from now, if we had to look back at the terms and phrases being used in 2021, would we commonly understand certain pop culture words in their natural setting? The question scarcely escapes its own statement. It is the same concept. Words are living entities that subtlety or overtly change and adapt their meanings over time. The same is absolutely true for the terminology and slang used at the time of the drafting of the Constitution and Bill of Rights. See https://www.insider.com/24-slang-words-teens-are-using-2020-what-they-mean-2020-12#slay-to-slay-is-to-do-really-well-or-succeed-at-something-the-term-first-emerged-during-the-1970s-and-80s-in-the-midst-of-black-drag-and-ballroom-culture-17
[iv] https://en.wikipedia.org/wiki/Intolerable_Acts
[v] For further explanation. Hearsay is generally unreliable and not usually admissible as evidence to prove anything (with limited exceptions). As indicated, an out of court statement offered to prove something in court (i.e., hearsay) is generally frowned upon because (a) the declarant (or the person that say it) is not present, under sworn oath (subject to the penalty of perjury for lying) and (b) that person is not subject to cross-examination (the “greatest legal mechanism” for getting to the truth). For example, to prove that Tom was in town, the attorney asks a witness, “What did Susan tell you about Tom being in town?” Since the witness’s answer will rely on an out-of-court statement that Susan made, if Susan is unavailable for cross-examination, the answer is hearsay. (From https://en.wikipedia.org/wiki/Hearsay#:~:text=For%20example%2C%20to%20prove%20that,examination%2C%20the%20answer%20is%20hearsay. ) The law makes a crucial exception for an admission (or statement) made by a party opponent (because it is assumed that parties do not make unwitting admissions that are lies or falsities). In the criminal case, the government (represented by the State, the People, or the Commonwealth) prosecutes the accused. The accused is the second party to the action (and thus anything he says can be offered against him to prove whatever is at issue). Not that complicated, but important to understand (and why never make any statements to law enforcement or anyone about your case other than your attorney.
[vi] THIS IS ALSO SUPER IMPORTANT. There are many different attorneys that practice in many different areas just like there are many different doctors that practice different types of medicine. A dermatologist (skin doctor) might understand the workings of the heart, but it would be better to get the opinion of a cardiologist (heart doctor) when dealing with issues concerning the heart. The same is true. A family friend who is an attorney that practices in estates and trusts, or does insurance defense might understand the basics, but is no substitute for a battle-hardened, board-certified criminal trial attorney that can, has, and will successfully navigate the situation. Simply calling any old attorney is a bad idea. Get the right type of assistance. Get the right type of attorney to assist you. It is no different that using the right types of tools to build something. You wouldn’t use a screwdriver to hammer a nail.