Miranda Violation

Practice Areas

  • To exercise your right to remain silent, you can say something like, “I am choosing to remain silent and I do not wish to answer any questions,” or “I am exercising my right to remain silent and I will not be answering any questions.”

Miranda Warnings – Ciminal Defense Attorney

Miranda warning must be given by the police to someone who is in custody before he or she is questioned. The warning includes reading of the following rights you have after any arrest:

You have the right to remain silent. Anything you say can and will be used against you in court.

You have the right to talk to a lawyer for advice before we ask you any questions. You have the right to have a lawyer with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish.

If you decide to answer questions now without a lawyer present, you have the right to stop answering at any time.

Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney present?

It may be necessary to “translate” the warning to the suspect’s level of understanding or to the language he speaks. You should know that failure to advise you of these rights is a violation of your Fifth Amendment right against compelled self-incrimination. It is also a violation of the Sixth Amendment right to counsel because you have the right to consult with an attorney before questioning begins and have an attorney present during the interrogation.  Any statements made in violation of Miranda rights may not be used as evidence against you in a criminal trial.

How can you invoke the right to remain silent?

If you are in a situation where you believe you have the right to remain silent, such as during a police interrogation or arrest, you can invoke this right by clearly and unequivocally stating that you wish to remain silent.

You can say something like, “I am choosing to remain silent and I do not wish to answer any questions,” or “I am exercising my right to remain silent and I will not be answering any questions.”

It is important to remember that once you have invoked your right to remain silent, you should not answer any further questions or provide any additional information without the presence of an attorney. It is also important to remain calm and polite when asserting your right to remain silent.

Miranda only applies to Custodial Interrogation

There are two elements for Miranda to apply: custody and questioning. This is usually referred to as “custodial interrogation”.

“Custodial” doesn’t necessarily mean that you were formally arrested. It means that your freedom to move was limited to the extent that you didn’t feel that you were free to leave. For instance if three cops are surrounding you, one cop has his gun drawn, and another cop wants to ask you questions about the crime of which you are a suspect, you are not in fact under arrest, but the custodial element for the purpose of Miranda is satisfied. So, if without being advised of your Miranda rights, one of the cops starts asking you questions about the crime and you answer those questions, your statements may be inadmissible.

Waiver of Miranda rights

The waiver must be “knowing and intelligent” and it must be “voluntary”. These are separate requirements. To satisfy the first requirement the prosecutor must show that the suspect generally understood their rights (right to remain silent and right to counsel) and the consequences of forgoing those rights (that anything they said could be used against them in court). To show that the waiver was “voluntary” the prosecutor must show that the decision to waive the rights was not the product of police coercion. If police coercion is shown or evident, then the court proceeds to determine the voluntariness of the waiver under the totality of circumstances test focusing on the personal characteristics of the accused and the particulars of the coercive nature of the police conduct. The ultimate issue is whether the coercive police conduct was sufficient to overcome the will of a person under the totality of the circumstances.

Assertion of Miranda Rights

If the defendant asserts his right to remain silent all interrogation must immediately stop and the police may not resume the interrogation unless they subsequently obtained a valid waiver before resuming the interrogation.

If questioning restarts after assertion of Sixth Amendment right to counsel by the suspect, the court may apply the Miranda rule more strictly. The police must immediately cease all interrogation and the police cannot reinitiate interrogation unless counsel is present.  If the defendant does reinitiate contact, a valid waiver must be obtained before interrogation may resume.

When is Miranda Required?

If the suspect did not make a statement during the interrogation, the fact that he was not advised of his Miranda rights is of no importance. Lack of Miranda advisement is not a violation of your rights if you did not make any statements. Also advisement is not required if you are not in custody.

Also if you have an encounter with law enforcement, there is no Miranda violation if you voluntarily start talking or you make spontaneous statements when no one asked you any questions. Similarly, if officers have not placed you under arrest and are only asking you some routine questions about your identity or making some general inquiries, it’s not required that they mirandize you. Also, if you yourself contact the police and start talking, or if you go to the police station and make a statement, you cannot later assert Miranda violation, because when you made the statements, you were not in custody.

Questioning during routine police administrative process

Miranda warning is generally not required during routine booking, when obtaining information for housing the inmate in jail, and when asking questions for medical and safety purposes. However, if the questions are designed to induce incriminating responses, issues may be raised later by the defendant as to voluntariness of the statements and possible Miranda violation.

If you believe your Miranda rights were not read to you and your statements led the police to eventually arrest you and charge you with a crime, you may have a very good defense. Contact an experienced criminal defense attorney in Los Angeles immediately. We may be able to have your case dismissed altogether based on Miranda violation.

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