“You have the right to remain silent,..”

The 5th Amendment and You Miranda: “You have the right to remain silent, ….”

It’s amazing the number of times the average teenager in our country has heard the Miranda warnings in movies and television programs yet forgets them when the police begin to question them personally. I always point out to my students that all of our important political figures who have ever been questioned by Congressional committees often say, “ Based on the rights guaranteed to me under the 5th Amendment I have nothing to say.” You must remember that you never have to say anything that might incriminate you. Statements that you make can be used against you.

Did the police “force” you to talk?

The key factors that courts look at when deciding these cases are: was the statement made voluntarily and without police coercion. Coercion is words or actions that might have forced a person into making a statement. For example, if the police officer were to promise an individual they would be released if they made a statement. The test used to determine whether a confession is made voluntarily is the “totality of the circumstances” test. The factors in the test are:

1. the number of individuals doing the interrogating.

2. the length of time they interrogated the individual

3. where the questioning took place

4. whether the person’s right to counsel was denied, and

5. what the defendant was like (education, age, mental state, experience)

The important case in analyzing your right to remain silent was Miranda v. Arizona, 384 U.S. 436 (1966). In the Miranda decision the U.S. Supreme Court held, “ that when an individual is taken into custody or otherwise deprived of his freedom by authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized.” Under the decision the person must be warned; 1)that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.

These warnings are only required if you are in custody or if you are deprived of your freedom in any significant way and are subjected to questioning.

What is custody?

This is the key question in any police/citizen encounter when it comes to giving the Miranda warnings. The police only need to give the warnings if the individual is in custody. The test used to determine whether a person is in custody is an “objective reasonable person” test. Berkemer v. McCarty, 486 U.S. 420 (1984) Therefore it isn’t whether YOU think you’re in police custody. The test is, “What would an ‘objective reasonable person’ think at the time the police were talking to them?” One of the key factors in determining custody is the place where the interaction took place. Therefore if you are in the back of a police car and it appears that you have been arrested, you are in custody and should’ve been read your rights, but if you have been paying attention to the information you’ve been given already you should know to: KEEP YOUR MOUTH SHUT. . So, if the police are asking you questions and they won’t let you leave, alarms better start going off in your head that the situation is serious and you might want to keep your mouth shut. As was stated earlier, well educated people who paid attention in government class keep their mouth shut. If you indicate that you want an attorney before they interrogate you and can’t afford one, an attorney will be provided for you. This right to an attorney applies only if they want to interrogate you.

Traffic Stops

A key idea in determining when the Miranda warnings should be given is whether the individual is in custody. When you are pulled over for a traffic stop the courts have traditionally held that the driver is not in custody so there is no need to give the Miranda warnings. Therefore, when you are pulled over, a driver wants to be aware of the statements they are making and how those statements might be used against them. Misdemeanors(small crimes): The Miranda warnings must be read even if the individual is only suspected of committing a misdemeanor. Berkemer v. McCarty, 468 U.S. 420 (1984)

Public Safety Exception

This exception to the Miranda rule applies if the police need to find out information from a defendant to protect the public. For example, if the police chase you from the scene of a crime and know that you had a weapon but they can’t find the weapon. They may ask you where the weapon is when the catch you. If you tell them where you dropped the weapon, your statement can be used against you. The court said it was more important to find a dangerous weapon than to read the Miranda warnings. New York v. Quarles, 467 U.S. 649 (1984)

You’re being arrested and you say nothing to the police.

If the police give you your Miranda warnings and you say nothing at the time you are arrested the police can not use that silence later against you. For example, you’re involved in a fight at a school event and the police arrest you. You say nothing at the time because you don’t want to get yourself in any more trouble. After meeting with your attorney, your attorney explains the law in your jurisdiction related to self defense and you tell the police you were acting in self-defense. Later in court he police cannot argue that you didn’t say anything about self defense at school when you were arrested so you can’t claim self defense later in court. You will still be able to claim self-defense even though you didn’t mention self-defense the night of the fight. Silence can not be used against you.

You’ve been arrested and are sitting in jail.

Once you have been arrested there are a few important things that you need to know. First, the police do not need to tell you that someone has hired a lawyer for you and that the lawyer has been trying to see you. Moran v. Burbine, 475 U.S. 412 (1986) Therefore, you need to remember if you are in custody that the police don’t need to tell you that an attorney is trying to meet with you. The police sometimes use this time to get an individual to waive their 5th Amendment rights and make a statement.