RIGHT TO REMAIN SILENT

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If you are a suspect of a crime and the police try to speak with you about the alleged crime, you should refuse if your attorney is not present. 

 

The US Constitution, via the 5th Amendment, gives a person the right to refuse to speak to the police.  ​The person's refusal to speak to the police cannot be used against them later at trial.

Unfortunately, many people do talk.  Even if they think they aren't "confessing", they often inadvertently give the police information that helps the prosecutor's case against them.

You have probably seen many times in movies and on television where a person gets arrested and you hear the officer say:

1. You have the right to remain silent.

2. Anything you say can be used against you in a court of law.

3. You have the right have an attorney present.

4. If you cannot afford an attorney one will be appointed. 

This warning that the officers read when they arrest a person is called the Miranda warning, which originated from a 1966 Supreme Court case called Miranda v. Arizona.

In Miranda v. Arizona, the Court ruled that criminal suspects who are detained must be informed of their constitutional right to an attorney and against self-incrimination before questioning.

For a person to be entitled to the Miranda warning, they must be either under arrest, or otherwise be detained (not be free to leave the custody of the police), and be subject to interrogation.  This is referred to as custodial interrogation. 

Sometimes a person might not be free to leave, but is still not "in custody".

For example, if a person is stopped by the police for a traffic violation, that person is not free to leave while the officer is checking their driving privileges and insurance information, etc.

But is that person entitled to Miranda warnings at that point?  Generally the answer is no.

A situation that routinely takes place where a Miranda issue can occur is where the police contact a person of interest in a crime, and ask them to come to the station for questioning voluntarily. 

Often the person shows up voluntarily and without an attorney, and agrees to talk to the police (never smart - even if you are innocent). 

In this case, since the person shows up voluntarily and agrees to sit down and speak with the police, there would be no right to Miranda warnings.

Since the person came in voluntarily and was "free to leave", their freedom of movement was not being restrained by the police and they are thus not "in custody".

In these circumstances, the police will generally go ahead and read the person the Miranda warning anyway, even though the person is not yet under arrest and showed up at the station voluntarily. 

They figure if they person is coming in to talk, why not have them sign a Miranda waiver form?  That way there can be no claim later by the person that the police never read them their rights.

Sometimes the police will not read a Miranda warning right away, but wait until the person already confesses, then read it and have the suspect sign a waiver form.

Perhaps they figure if they read it right away it will scare the person into not talking? 

In some cases where this type post-confession Miranda tactic is used, it can be shown that the person's rights were violated and have the statement suppressed by a trial court (thrown out of evidence). 

If the police give the warning appropriately, they will usually be "covered" so to speak, and the confession will not easily be suppressed. 

Suppression of statements and evidence is possible in some cases.  Police are human and sometimes will cut corners either intentionally or unintentionally. 

When that happens your attorney needs to be able to spot it and present it to the court via a motion to suppress.

This is not an easy thing to achieve in most cases.  The police have been well-trained on suppression issues in the St. Louis area and surrounding locales. 

Mr. Feely has successfully argued suppression motions and had statements suppressed by the court. 

In one instance, Mr. Feely had to defend his success in getting a confession suppressed because the trial judge's decision was appealed by the prosecutor to the Eastern District of the Missouri Court of Appeals.  

Mr. Feely won that case on appeal and made caselaw in Missouri on the Miranda issue. 

The ruling explains the factors a judge considers in deciding whether a person was entitled to the Miranda warning in a particular situation.

Call today for a free case evaluation. 

Disclaimer

The Law Office of James Feely, Jr., LLC provides the information in this web site for informational purposes only. The information does not constitute legal advice. The use of this site does not create an attorney-client relationship. Further communication with this attorney through the web site and email may not be considered as confidential or privileged. Please contact this attorney if you wish to discuss in more detail the contents of this web site. The choice of a lawyer is an important decision and should not be based solely upon advertisements.  Past results afford no guarantee of future results and every case is different and must be judged on its own merits.  All meetings with attorney are by appointment only. This disclosure is required by rule of the Supreme Court of Missouri.

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