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"...You Have the Right to Remain Silent..."

Is there anybody in the United States that has not heard this phrase from the Miranda warnings before? Not everybody has been subject to a law enforcement advisement. But these rights and this phrase is very much a part of the American social fabric. Indeed, widely known as “the Fifth”, or the Miranda rights. #MirandaWarnings #MirandaLaw #Arizona #unitedstatesconstitution

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Specifically, the Fifth Amendment right against self-incrimination derives from the U.S. Supreme Court decision in Arizona v. Miranda, 384 U.S. 436:

The prosecution may not use statements, inculpatory or exculpatory, stemming from custodial interrogation, unless the state demonstrates procedural safeguards effective to secure the privilege against self-incrimination.

This holding is clear. But there is a misperception among the public. The police not reading Miranda is an issue only if an “in-custody” person makes incriminating statements in response to a police question, or "interrogation." Police merely not advising of Miranda will not in and of itself dismiss a case. And, the impact of a Miranda violation is the prosecution will lose statements a defendant made prior to the advisement. That’s it. There will not be an “automatic” dismissal. The impact is a preclusion of the defendant’s statements if the defendant was not free to leave.

WHEN DO THE POLICE HAVE TO READ THE MIRANDA RIGHTS?
As touched on above, the Fifth Amendment right against self-incrimination is a safeguard to statements made by a person during a “custodial interrogation.”

STEP 1: THE MIRANDA WARNINGS REQUIRE AN “INTERROGATION”.
The first step in this analysis is to determine whether there was an “interrogation”. This defined as anything designed to “elicit an incriminating response.” An easy example would be a police officer asking a direct question as to a person’s involvement in an investigation. Another example would be an officer using tactics in front of a person with the goal to get the person to make a statement. Such as, talking to another officer in front of the person about the person, or crime investigated, with a goal orientation to elicit some response and get the person to incriminate themselves.

STEP 2: THE MIRANDA WARNINGS REQUIRE ONE TO BE “IN CUSTODY”?
Is a person “in custody?” In State v. Stanley, 167 Ariz. 519, 523 (1991), the Arizona Supreme Court held:

Whether one is in custody is determined objectively: under the circumstances, would a reasonable person feel deprived of his freedom of action?

Indeed, this determination requires an analysis from an “objective, reasonable person’s” standpoint of whether that person felt free to leave.

Simply put, Law enforcement must give the Miranda Warnings advisement of the privilege against self-incrimination if there is a "custodial interrogation."

In this video, Tempe Arizona's Best Criminal Defense and DUI Attorney Jeremy L. Huss of Huss Law, PLLC discusses when the police are required to give Miranda warnings.

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