Every week I receive some question concerning the significance of law enforcement’s failure to read someone his/her rights.  Sometimes the question explicitly asks if all of the charges can be dismissed, but most of the time the question is searching for some hope that the failure to read the rights might benefit the person that has been arrested.  Because it appears to be on the minds of so many people, I decided to just address it in its entirety. 

First, the rights that everyone is thinking and talking about are referred to as the Miranda warnings.  When law enforcement reads the Miranda rights, they tell the accused: 

You have the right to remain silent.  If you give up the right to remain silent, then everything 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 may be appointed to represent you.  Do you understand these rights? 

 Although those are the rights, the most important question comes at the end of those rights, which puts you on notice as to why the police are reading the rights in the first place: 

Having those rights in mind, do you want to speak to me? 

IF LAW ENFORCEMENT IS NOT CONDUCTING AN IN-CUSTODY INTERROGATION, THEN THE RIGHTS DO NOT NEED TO BE READ TO THE ACCUSED. Therefore, the rights do not need to be read solely because there is an arrest.  I know the public has seen the rights read to suspects arrested in T.J. Hooker, Mod Squad, Law and Order, Cagney and Lacey, Kojak, Baretta, Columbo and every other cop show coming out of Hollywood for the last fifty years.  However, Hollywood includes the Miranda rights in the script so that the viewing audience knows that the person in the company of the police is officially going to jail.  Sometimes it is difficult to tell when the police are talking to a suspect and when the police are arresting a suspect.  So, Hollywood provides an easy clue.  However, the inclusion of the Miranda warnings at arrest has nothing to do with Miranda warnings, and everything to do with salient clues for the viewing public. 

Second, if the police in the real world, not Hollywood, were required to read an accused his Miranda warnings when the police were making an arrest, such that the failure would result in a dismissal of all charges, the person arrested would be read his Miranda rights about six times.  Every officer that came into contact with the arrested person would read Miranda warnings.  The Miranda warnings would be recorded on the dash camera and other video.  The police are not stupid.  IF MIRANDA WARNINGS WERE REQUIRED TO MAKE AN ARREST STICK, POLICE OFFICERS WOULD ELIMINATE ANY POSSIBILITY THAT THE CHARGES WOULD BE DISMISSED OR REDUCED BECAUSE MIRANDA WAS NOT READ BY READING MIRANDA RIGHTS HALF A DOZEN TIMES.  Why don’t they read Miranda warnings six times to a person under arrest?  Because Miranda warning are not required to arrest a person.

Third, after a person is arrested, and in-custody, if the police choose to speak to the accused about the circumstances of his arrest, which might result in the accused making incriminating statements, the accused MUST be read his rights.  The police do not need to read someone Miranda rights in order to ask for basic information, like name, address and/or social security number. 

Fourth, if a detective or investigator chooses to interview an accused in order to learn more about the circumstances, or trick the accused into making a confession, the interview is usually recorded on CD or DVD.  If that CD or DVD contains the in-custody interview, but not the Miranda warnings, then law enforcement may have a problem when they get to court, and try to use the recorded statement against the accused.  However, it is easier than this for law enforcement.  If law enforcement want to obtain a useable confession, all they have to do is trick the accused with a few magical phrases:

1. We just want to get your side of the story, but let us get this procedure (Miranda rights) out of the way
2. This will be your only chance to put your side of the story out there, do you want to give your side…yes, just let us get this out of the way;  
3. Your friend/neighbor is telling us (some lie the police make up), do you want an opportunity to clear it up, or do you want us to make a decision about your arrest just on what your friend/neighbor tells us…before you do that let us get this formality out of the way; 
4. We have your blood/fingerprint/mucus/DNA at the scene (another lie by the police), so you want to tell us how it got there…before you do that let us read your Miranda warnings; or
5. You might be able to help yourself by explaining what happened…does that make sense to you…before we let you do that we have to read to you what you hear on TV all of the time, Mirada warnings 

In each of the situations, the person is left with the impression that the Miranda warnings are a trivial formality.  By the time the rights are read, the accused is primed and ready to speak to the policed.  The accused does not even hear the Miranda warnings.  However, the rights are read, and that is all the law requires.

So, MIRANDA WARNINGS DO NOT NEED TO BE READ UNLESS THE ACCUSED IS IN CUSTODY AND IS BEING QUESTIONED ABOUT THE SUBJECT OF THE ARREST.  If that is the case, do not take the opportunity to clear up anything, invoke your right to counsel and shut up.  In fact, when you are in police custody, do not write, read or say anything, PERIOD. 

 By Lawrence Lewis - Criminal Defense Attorney, DUI Attorneys in Lawrenceville