Not read your rights by the police? What are the rules?

The police didn’t read my rights!

The thing people ask me about most often seems to be about being questioned by the police without their Miranda rights.  Things like “Were the police required to give them?”  “I told them I didn’t want to answer, but they kept going.” and “Can I get my case thrown out because they didn’t read my rights?” are the common type questions I hear.

First – the general rule of thumb for Miranda is that you’re entitled to your rights when you’re in custody (arrested or the functional equivalent of an arrest) and being interrogated (direct questions about your involvement or conduct by the officers designed to elicit an incriminating response). If you were truly detained only, they’re not obligated to give you your rights. They try to accomplish this through a Beheler admonition – telling you that you’re not under arrest and only detained or that you’re free to go. If they didn’t give you such information, then the facts surrounding the situation will determine if you were in custody or not.

From there, if you were in fact entitled to your rights and you invoked them, the question is: Was it a valid invocation?

Invoking your rights

You can invoke your right to silence under the Fifth Amendment expressly (telling them you don’t want to answer questions) or impliedly (by just refusing to answer questions). The only valid way to invoke your Sixth Amendment right to an attorney however, is by a direct, express request for an attorney.   [There is a recent case that involved a suspect who was being questioned by the police for hours and simply sat silent.  After hours and hours of questions being asked the suspect gave a one-word answer to a question that implicated him in the crime.  The court found that the rights had not been invoked through silence, so I always advise people to affirmatively invoke your rights and tell the police you don’t want to talk and that you want an attorney.]

Under either invocation, the rule is that once you invoke, all questioning must cease. Any subsequent statement taken in violation of Miranda should be excluded by the judge. The prosecution wouldn’t be able to use your statement against you during their case, but could potentially use it to impeach you if you testified differently at trial. If the questioning rises to the level of coercive, it can lead to the statement being excluded for all purposes and the prosecution couldn’t use it, even to impeach you.

If you chose to answer a few questions, the issue is going to be whether or not you truly invoked your rights. A person being questioned can re-initiate questioning by the officers. Depending on the facts, the re-initiation may or may not have required them to give you your rights, clarify things, etc.

What happens to the statement in court?

If the DA did not file charges against you, then there won’t be a case in court and the statement won’t be an issue. Only if there are charges filed and the DA seeks to introduce your statement will these Miranda issues be raised.

Keep in mind – your Miranda rights exist only when custody and interrogation are present at the same time. If you were released from custody and there were no charges filed, the need to advise you also went away. Should you be contacted by the police and are out of custody, they can question you without giving you your rights. This applies if they try and covertly record a phone conversation with you, etc. Your best bet at this point it to NOT discuss this situation with anyone but your attorney in a completely confidential setting. You said that they’re continuing to investigate you, so clearly there’s something going on. I’d suggest you find a criminal defense attorney and discuss the situation, representation and how to best protect yourself.

In the mean time, say nothing about this to anyone and if contacted by the police, your first question should be, “Am I free to go?” If yes, leave. If they say no, then politely, but firmly, tell them you will not answer any questions and that you demand to speak to an attorney. Say it twice or three times if necessary to make sure they heard you, then you’re done talking.

For more, see Interacting with the Police, Miranda rights and intoxication and DUI and Miranda rights

Joe Dane

(714) 532-3600