Miranda and making a statement to police – Part 1 of a series

Miranda rights in criminal cases


This is the first part of a series I decided to write regarding the Miranda rights and talking with the police… or more importantly, NOT talking to them.


First, the law of Miranda:

In 1966, the United States Supreme Court decided the now-famous Miranda decision (384 U.S. 436).  It set out the rules that now a person who is in custody and being interrogated by the police must be informed of their constitutional rights before any resulting statement can be used against them in court.  That decision doesn’t set out any particular language of the rights that must be given, but there are the four components and they usually go something like this:

  • You have the right to remain silent
  • Anything you say can and will be used against you in a court of law
  • You have the right to an attorney before and during any questioning
  • If you cannot afford an attorney, one will be appointed free of charge

The Fifth Amendment

Those rights come from both the Fifth and Sixth Amendments of the US Constitution.  The Fifth Amendment protects your rights against self-incrimination.  That means that you don’t have to say something that incriminates you – in other words, gets you in legal trouble in a criminal case.  The Miranda decision includes the first two warnings that a person does have that right to not incriminate themselves by talking and that if they do talk, any statement could come back to bite them in court.

The Sixth Amendment

The last two parts are from the Sixth Amendment.  Again, the Miranda decision included the necessity that a person being questioned be advised of their right to representation as guaranteed in the Constitution.  Because custodial questioning is considered an important stage of the criminal process, a person is entitled to the assistance of counsel.  Because it’s such an important constitutional right, the right of an appointed attorney – free if the person cannot afford one – is guaranteed.

The way it is worded above is the generally accepted way the rights are given.  However, as long as the police don’t undermine to change the importance of the warnings, they don’t have to stick to that script word for word.  They can clarify if necessary, use different words or explain in clear language what those rights mean.  They typically stick to the script though since they’re widely accepted and don’t want an argument that they altered, lessened or changed the rights.

Do you understand?

Along with giving the rights, the police must demonstrate that you waived your rights before the statement can be used in court.  The court must be satisfied that you made a knowing, intelligent and voluntary waiver of your rights.  (The specifics of waiving or invoking rights will be discussed in greater detail in part 3 – coming soon)

To try and show that you were advised and understood your rights, they will ask in one of two ways.  Some officers and some departments will ask “Do you understand” after each of the four rights.  They’ll say, “You have the right to remain silent.  Do you understand?” and wait for your response before going on to the next.  Others will read all four parts of the rights and ask one question at the end, such as “Do you understand each one of those rights?” or “Do you understand those rights?” or simply “Do you understand?” They must get an affirmative (yes) response to show you were advised of the rights and acknowledged that you understood them.


Now, it’s the subject’s turn

Once the police have given the rights, they have gotten an acknowledgment that the person understood their rights, it now shifts to the subject.  Do they want to talk or not?


Before we get to whether a person wants to waive those rights or invoke them, a discussion about when the Miranda rights even apply.  See part two – Miranda rights and questioning… when it applies


Joe Dane

Orange County Criminal Defense Attorney



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