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They Never Read Me My Rights - Can My Charge Be Dismissed?


The title of this article is a verbatim recitation of what I often hear from a potential client. Before discussing the remedies for a Miranda rights violation, I will first outline what they are and when they apply.

What are Miranda Warnings?

Miranda warnings are more likely familiar to you from exposure to pop culture than from prior contacts with the criminal justice system. They are reiterated time and again on movies, television shows, and even in songs (recall the Miami Vice soundtrack?). These warnings became an integral part of American jurisprudence following the decision in Miranda v. Arizona, where the United States Supreme Court held that a person must be advised of certain rights before his or her confession could be admissible as evidence against him or her at trial. They are as follows:

  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 to talk to a lawyer and to have him or her present with you while you are being questioned;
  4. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish.

The first two Miranda warnings pertain to the accused person's Fifth Amendment right against self incrimination, whereas the latter two pertain to the accused person's Sixth Amendment right to counsel. Basically, an accused person cannot be compelled to make an incriminating statement against himself or herself and he or she had the right to be represented by counsel once formal criminal prosecution is initiated.

If the person elects to exercise these rights, and not make a statement, his or her post Miranda silence cannot be commented upon by the state in a subsequent trial (as any inference of guilt).

When are Miranda Warnings Required to Be Read?

Miranda Warnings must be read if the person is in police custody and is being subjected to interrogation (a fancy word for "questioning"). Lawyers often refer to this scenario as "custodial interrogation".

  • Custody

If a person is free to leave at any time, whether he or she is being questioned in their home, office, or at the police station, then that person is not in custody for purposes of Miranda. Where the person is not specifically told he or she is free to leave, the court will consider whether a reasonable person would have believed he or she was free to leave under the same circumstances. If the court determines that a reasonable person would not have believed he or she was free to leave, and Miranda warnings were not read prior to questioning, then any ensuing statements would be properly suppressed. The converse is also true: if a reasonable person would have believed he or she was free to leave, then any purported Miranda violation will not result in the suppression of inculpatory statements.

  • Interrogation

In addition to express questioning, an interrogation may also include words, comments, or actions on part of a law enforcement officer that is designed to elicit an incriminating response.

You should also be aware that during the process of interrogation, a police officer does not have to be completely truthful with you. A certain amount of deception is permissible, but there are limits.

What is the Remedy for a Miranda Rights Violation?

Where the person is not free to leave, is not read his or her Miranda rights, and is questioned about a criminal offense, the statement is suppressible. This means that it cannot be used against the defendant during the state's case in chief at trial.

Another potential violation occurs where the person states that he or she wants an attorney present for any questioning (after Miranda is read), no attorney is provided, and the police continue to question the accused person until an incriminating statement is obtained. Once again, this type of violation will preclude the state from introducing the statement against the defendant during the state's case in chief.

You should be aware, however, that if the defendant elects to testify, and makes statements at trial that are inconsistent with the suppressed statements, those suppressed statements may be introduced, despite the Miranda violation, to impeach the defendant's credibility.

What if Miranda Warnings Were Read, But My Statements Were Coerced?

"Voluntariness" is a separate but related issue, so we will address it. Even if the Miranda warnings are read as required, any admission or confession must freely and voluntarily made. If the statement was coerced in any way, then it is suppressible. Unlike a Miranda violation, however, a statement that is coerced cannot be used either in the state's case in chief or for the purpose of impeachment.

OK - So Can My Charge Be Dismissed?

Perhaps. As indicated above, the remedy for a Miranda Rights violation is suppression of the statement. In some cases, the state will be unable to proceed without the defendant's statement. An example may be where drugs are found in the glove box and the only way to establish the defendant/driver's knowledge of their presence is through his or her statement. In other cases, the state will be able to proceed with or without the confession. An example may be where the defendant robs a bank and he or she is stopped driving the vehicle that was involved in the robbery a short time later, wearing the same clothes, and with dye pack soaked currency all overt the vehicle's interior. Under these circumstances, the state would have a reasonable likelihood of conviction, even in the absence of a confession. Under such circumstances, the charge would not be dismissed, or nolle prossed, by the state.