The Most Common Misconception about Miranda
Right after they’re arrested, the first thing most people will tell me is that no one read them their Miranda Rights right away. As everybody has seen on TV, the Miranda Rights are the person’s right to remain silent, the right to an attorney and that everything they said can and will be used against them; what they often don’t realize is that these rights won’t come into play until the person was in custody; if the police were just conducting a basic investigation and were just talking to them, they don’t have to read them their Miranda Rights, although they can use anything someone says against them. Often, police won’t tell the person they’re under arrest or in custody because they don’t want to scare them into not talking.
Police often bring people to the police station and make a point of telling that person they are not in custody, but that can become an issue if the person was, in fact, in custody. In such a situation, if the person is free to leave, they are not in custody, but if not, they are, and must be read their Miranda Rights. For example, police can hold someone for 72 hours without officially arresting them, but if they are not allowed to leave, they are in custody and their Miranda Rights would apply. Police sometimes do this in bigger cases, in order to sweat somebody for 48 to 72 hours, but never give them their phone call. They can do that, but the benchmark is usually 72 hours without having to give them access to an attorney or a phone.
If someone in that situation refused to say anything without an attorney present, it often turns into a swearing contest, in which the police will claim the person was free to leave at any time, but if the person was left in a locked room surrounded by police asking questions, it will be hard for police to make their case. All of the questions will come up later and if someone incriminated themselves with any of the information they gave, we would file a motion to suppress those statements.
How Do People Commonly Incriminate Themselves Or Hurt Their Case Unintentionally?
People tend to complicate matters from the first minute they open their mouths; the golden rule in these situations is that silence is golden; the person has the right to remain silent, and they should always exercise that right. They should politely inform the police they would like to cooperate and answer questions, but not without their attorney present. I actually have something printed on the back of my business cards that reads, “Look, I’m not trying to be rude but I understand my rights, I am not consenting to anything without my attorney being present, I’m not consenting to these searches, I’m not consenting to anything.” The police tend to scare people, which makes them open their mouths, which gets them into all kinds of deeper trouble.
For example, when someone claims they only pushed their wife a little but didn’t hit her, they have just admitted to domestic battery whether or not they understood that. Often, people make what they think is an exculpatory statement, when in fact they’re admitting to a crime.
People should always just keep their mouth shut and wait to talk to their attorney because it never helps. If they refuse to speak to police, no judge will hold it against them, but statements they do make will be held against them. While people often hope the police will be honest with them, they are not about 90 percent of the time in these situations.
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