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  • Writer's pictureCamille Wagner

They Didn't Read Me My Rights!

They don't always have to...

 

"They never read me my rights!" This comes up on many phone calls during consults or from our clients. Our response: "Did they ask you any questions?"


What are my "rights"?

We've all seen it in movies and TV shows but here it is again:

  • You have the right to remain silent

  • Anything you say can and will be used against in you in a court of law

  • You have the right to an attorney

  • If you cannot afford an attorney one will be provided to you

When do officers have to read me my rights?

They have to read you your rights before any custodial interrogation. That means, unless you are in custody and unless they are going to interrogate (or question) you, the officers do not have to read you your rights.


How do I know if I am in custody?

The case law is not clear here. Custody arguments are analyzed on a case by case basis. But the simplest way to think about it is by asking yourself: "am I free to leave?" If the answer is yes, then you are probably not in custody. If the answer is no, then we may be able to argue you are in custody. Getting handcuffed does not always mean you are in custody according to case law, whereas officers telling you "you are under arrest" puts you in custody. It is not a clear line yet an easy one to cross.


What counts as interrogation?

The simplest way to explain it: interrogation requires questioning that could lead to incrimination. So as an example, if an officer asks you at the police station, after you have been arrested (clearly you are in custody), "what is your name and date of birth?", that is not interrogation. But, if the officer asks "why did you have that firearm on you?", this would count as interrogation because your response would lead to incrimination!


What if I was in custody, was interrogated, and did not have my rights read to me?

Your attorney would file a motion to suppress any statements you made during custodial interrogation. Miranda v. Arizona, 384 U.S. 436 (1966). But... the government would still be able to use any statement you made to impeach you at trial if you testify to something different than what you said during the custodial interrogation.


BOTTOM LINE:

The only words you should say are: LAWYER & I EXERCISE MY RIGHT TO REMAIN SILENT

 

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