Miranda rights exist to protect the accused, but are only used about 20% of the time. Many people waive their Miranda rights without meaning to, and don’t even know what they have done.  But it can be disastrous for your legal defense, so read on to know how these mistakes happen, and what you can do to prevent them.

What are Miranda rights?

Miranda v Arizona2Miranda rights, also called the Miranda warning, is a verbal warning given by police officers after an arrest and before an interrogation. In a nutshell, the rights tell us that anything we say can and will be used against us. In 1966, in the case of Miranda vs. Arizona, the United States Supreme Court decided that interrogating a suspect without informing him that he has a right to remain silent violated both the 5th (forced to bear witness against oneself)  and 6th (right to counsel) amendments of the Bill of Rights. 

In the Miranda warning, the police must tell you the following four things, though they don’t necessarily need to be worded in just this way:

  • You have the right to remain silent;
  • Anything you do say can and may be used against you in a court of law;
  • You have the right to have an attorney present before and during the questioning;
  • You have the right, if you cannot afford an attorney, to have one appointed, without cost to you, to represent you before and during the questioning.

These rights are given everyone in the United States via the constitution, and every person also is innocent until proven guilty. So...what goes wrong?

How do people waive them?

Waiving Your Miranda RightsPeople often do not know that they must be very obvious about wanting to exercise their rights. You must actually tell the officers you want to invoke your rights. Because if you don’t, the law implies that you are waiving your rights, even if you had no plans of doing so.

This is called an implied waiver. If you have been told your rights, but still say something, it is implied that you are waiving your rights. It can also be considered a waiver of your rights if you are silent for a long period of time before speaking.

A glaring example of this was a man in a 2010 Supreme Court case, Berghuis Warden vs. Thompkins. Though he was silent during most of his interrogation, at one point he was asked if he had prayed to God for forgiveness for what he had done. Mr. Thompkins answered, “Yes”. Because he never explicitly said he wanted to invoke his Miranda rights, his statement was used against him. The judge ruled that he had waived his rights by speaking.

Why do people waive their Miranda rights?

Police Waiving your Miranda RightsMost of the time, the plain truth is that people do not exercise their Miranda rights because they just don’t understand how. In a stressful situation, many are unable to focus on the instructions given by the police. As much as 80% of the time, the accused waives their right to be silent  and often ends up helping out the prosecution. Often when I get a new client he tells me that Miranda rights were not read to him. While that can often be true, I have also had many cases where the Miranda warnings were read on video so there is no dispute they were read. It is simply that under the stress of the situation the suspect cannot focus on what the officer is saying and doesn’t hear the warning. 

Sometimes people think they can talk themselves out of a charge, but often the opposite is true. Other people who often waive their rights unknowingly include the intellectually impaired, juvenile offenders, and those who do not speak the language the officer is using when reading the warning.

Once waived, you CAN get them back

Most people don’t know that once you waive your rights by speaking, you can still get them back. At ANY point in an interrogation, you can invoke your Miranda rights. The things you already said can still be used against you, but that is no reason to keep talking. Just because you started talking it doesn’t mean you have to keep talking.

What can you do to protect your rights?

Police are trained to get you to talk. They will take your words and use them against you, so make sure that does not happen. There are a few things you can do to make sure your rights are upheld.  First and foremost, make sure the police know you are invoking your right to remain silent. Say nothing about your case at all to the police. Instead, politely but firmly tell them you want to talk to your lawyer. This will end any interrogation. 

You also need to make sure to find a great criminal defense attorney who can help you through the legal system. If there is a reason to make a statement to the authorities, you want an experienced attorney by your side to protect your rights and make sure you put your best foot forward.

Contact Phoenix Criminal Defense Attorney Burges McCowan for a free consultation.