The police didn’t read me my rights! Now what? Miranda and the law

What happens if the police didn’t read you your rights?  Can your entire case be thrown out or dismissed?


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Transcript of audio:


Hi – it’s Orange County defense attorney Joe Dane.


Today, I’m going to talk about one of the most frequent complaints people have when they get arrested, and that is that “The officer never read them their rights – their Miranda rights” and follow up question is always, “Does this mean my case is gonna be thrown out?”


Well, let’s start off and talk about what the Miranda rights are and what can and can’t happen in your criminal case. First of all, the Miranda rights have been around for years. In 1966, the US Supreme Court came out with the famous Miranda decision which now requires peace officers to give people their rights when they’re arrested and being subject to questioning.


The Miranda rights are actually two different rights. The first is the Fifth Amendment right and that’s your right to remain silent or not become a witness against yourself and the other one is from the Sixth Amendment and that is your right to attorney at all critical stages of the proceedings, including police interrogation. Those are the rights that come from the Constitution and the Miranda warnings (or the Miranda advisement) comes into play if you are in custody and being subject to interrogation. Both of those things at the same time have to exist before the police are required to give you your rights. Both in custody and being questioned.


Custody is the functional equivalent of an arrest or a formal arrest. If they put the cuffs on you and tell you you’re under arrest, there’s no question you’re in custody. The second part is interrogation. They have to be asking you direct questions about the crime you’re suspected of or arrested for for it to be interrogation. Both of those at the same time.


This isn’t like TV or the movies – you’ll see, you know, detectives running down the street chasing after somebody. They’ll tackle them and as they’re putting the handcuffs on, one or the other of the partners will start reading the guy their rights. It’s not like that. In fact, there are many cases where the Miranda rights never come into play because after arrest, the individual is never questioned about the crime.

It’s if you’re arrested and being questioned – that’s when they have to give Miranda rights.


The most important thing about that though, is when Miranda rights are not required to be given. If you’re not in custody, they don’t have to give your rights. The best example of not being in custody but being temporarily detained is like a traffic stop. If the police pull you over for whatever violation and they start questioning you and let’s say they smell alcohol, for example. If they ask you questions like, “Have you been drinking?” If you say yes, you have absolutely incriminated yourself under the Fifth Amendment. But because you’re only being detained and you’re not formally arrested at that point, they don’t have to read you your rights and that statement that you make out on the side of the road is perfectly admissible against you. That applies to just about every sort of police investigation. If they are just doing general investigation questions of you but you’re not formally “in custody,” Miranda rights don’t come into play.


If there is a Miranda violation, for example you were in custody and you were being interrogated but the police didn’t read your rights; or if the Miranda rights weren’t given properly, or the waivers weren’t correct or something like that, what’s the remedy? I know a lot of people think that the entire case thrown out, but that’s not the situation. The remedy, if there is a Miranda violation, is the statement that’s taken in violation of Miranda is excluded. It’s not excluded necessarily for all purposes, but the prosecution can’t use it in their case against you to try and convict you.


Miranda situations, like many aspects the law, are very fact-dependent though – whether or not you are actually in custody… whether or not the way the police ask you questions or read you your rights was proper… whether the statement itself is coercive… the entire context has to be reviewed. If you have been arrested here in Orange County and you want to talk about your case, give me a call my phone number is 714) 532-3600 or send me an email: The links are below.


Joe Dane, Orange County Defense Attorney


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