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We all know our Miranda Rights - they are what the cops on TV say to the bad guy they just arrested.

You have the right to remain silent. Anything you say can be used against you. You have the right to an attorney. If you cannot afford one... and so on. There is a popular belief out there that before the police can use anything you say against you, that you need to have these rights read to you.

That is incorrect. In fact, many statements suspects make may be used against them - even if they never received your Miranda Rights! To help understand why, it is important to understand why police give Miranda Rights in the first place.

Why Police Give Miranda Rights

Before anything you say can be used against you, the courts have to find that you made the statements voluntarily. This is a fundamental right that is grounded in the 5th Amendment, which protects your right against self-incrimination.

Courts don't want police getting statements by beating, threatening, or in other ways coercing suspects. In an ideal world, all statements obtained by police would be freely given by a well-informed suspect who is aware of his rights to remain silent. With that goal in mind, we turn to the case of Miranda v. Arizona

In the landmark Supreme Court case of Miranda v. Arizona, the Supreme Court held that coercion can be mental as well as physical. Indeed, the Court described in detail, the various police interrogation practices and likened it to a form of psychological coercion. A portion of the opinion stated that interrogation "exacts a heavy toll on individual liberty and trades on the weakness of individuals."

In other words, police interrogations are inherently coercive in nature, and statements obtained during those interrogations are not voluntary.

To remedy this reality, and get closer to the ideal mentioned above, the Court required police to advise defendants of their rights to remain silent and to an attorney. In theory, this advisement levels the playing field and dispels the inherent coercive nature of custodial interrogation.

When do Miranda Rights Have to be Given?

Because the purpose of Miranda Rights is to dispel the inherent coercive nature of custodial interrogation, they are only given during custodial interrogation. This means that statements obtained while out of custody, or while in custody but not interrogated can be used against the suspect.

Why? Because the same level of coercion is not present when a suspect is not in custody. Nor is it present if the suspect is not being subjected to interrogation. Because coercion is not present, there is no need to dispel it.

What is custodial interrogation?

Custodial interrogation has two parts. The first is that the suspect be in custody. The court will look at the totality of the circumstances when determining whether someone is in custody or not, but it is equated generally to full arrest (i.e. in handcuffs). The second requirement is the suspect be interrogated. An interrogation is essentially any act or statement that law enforcement knows or should know is likely to illicit an incriminating response. This means that voluntary statements made by a suspect independent of any questioning can be admitted. Also, statements made in response to questions that are not likely to illicit an incriminating response (but do) can be used against the suspect.

Conclusion

Many cases are built every day against defendants based on things they say. They often make these statements in custodial interrogation after being informed of their right to remain silent. The best way to avoid having statements used against you in a criminal case is take advantage of your Miranda Rights and remain silent!

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