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McHenry County Criminal Defense Lawyer“But I was never read my rights!”

I probably hear this statement from at least one out of every three clients when they first come into my office.  And rightly so.  TV and movies often portray (incorrectly) situations where a suspect is not read their “rights” – and the next scene, after the commercial break, they are being released from jail with their charges dismissed. Let’s explore the issue of those “rights” in this article.

What are Rights?

“Rights”, to which a client refers, are more accurately detailed as Miranda rights from the landmark United States Supreme Court case of Miranda v. Arizona. And, you guessed it, they are the ones you hear being recited on The Wire or NCIS or Chicago P.D.

 They are the warnings that are supposed to be given to a suspect before he is questioned:

“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.

If you cannot afford an attorney, one will be provided for you.”      

When do I get my rights read to me?

Most people know what their Miranda rights are, but few know when they must be given.  The short answer: they do not always have to be given.  There are many instances when no Miranda warnings are required, but the statements you make can still be used against you. The law has determined that they only need to be given when there is a Custodial Interrogation

What is Custodial Interrogation?

There are two main components to when Miranda warnings need be given. First, before any reading of the warnings is required, the individual suspect must be in custody.  If a person is not in custody, then no Miranda warnings need be advised.  Second, once in custody, the police must direct questions to the suspect to complete the interrogation component. If they don’t ask questions, they don’t need to warn of Miranda rights.

What is in custody?

Certain situations, you are clearly in custody.  For example, when a police officer tells you that “You are under arrest!” the custody requirement has been satisfied.  Similarly, even when the police do not say you are under arrest, but put you in handcuffs or place you in the back of their squad car, you can be reasonably sure that you are in custody (however, there are even some exceptions to those types of scenarios).

The courts have determined that a person is in custody when he has been arrested or “otherwise deprived of his liberty of action in any significant way.”  Thus, if you made statements to the police, but did not have your Miranda warnings given prior to that, it is important to give your criminal defense attorney all of the details surrounding that police encounter, so that your attorney can make a proper analysis as to whether you were in custody for Miranda purposes.

What is an example of not in custody? 

When the police ask you to voluntarily come to the station – and you do!

This has happened more times than you may think with the result of the potential suspect being promoted to full-fledged defendant.  Here is how it usually plays out:

In your effort to resolve the matter “amicably” and without expense of an attorney, you decide to visit the police on your own.  After all, you are smart, and the police officer has been a regular guy to you the entire time.

This usually starts with a request by law enforcement to come to the police station to “Sort this whole thing out”, but ends with the announcement, “You are under arrest.”  In the middle is the part where you drive to the station in your own car, walk into the police department voluntarily and, then, during a friendly chat with an experienced detective (likely  interspersed with comments on the weather and the Cubs’ need for a better relief pitcher), you make several incriminating statements. Add to the mix that the detective, to whom you just recounted your transgressions, has had extensive training in subtle, questioning techniques.  The statements you made will not be suppressed.  Those statements did not require the protective of Miranda, because, up until the time you made the statements, you were not in custody. Just two guys (albeit one with a badge) shooting the breeze about Carl Edwards, Jr., but salted with enough talk about the details of a recent crime to win you a pair of form-fitting, double-locked handcuffs.  

The money you just “saved” by not calling an experienced criminal attorney first, now will cost you significantly more (not mention potential loss of liberty), once the case is in the court system. Remember, there is NEVER a good reason to go to the police station alone to talk about any case that involves you as a potential suspect. If you get a call from the police, the next call you need to make is to an experienced criminal lawyer.

What is interrogation?

The word interrogation brings to mind sitting in a windowless room at a metal table with two cops alternating good and bad (or bad and baddest, as the case may be), until you make statements that seal your case for them. Again, the movies depiction is far less accurate than the real world.

Although interrogation is required, the questioning process is much more subtle than the above scenario and most direct questioning qualifies for the interrogation prong of the Miranda requirement.  Additionally, there is a line of cases that discuss situations where there was no direct questioning, but police engaged in the functional equivalent thereof, causing the suspect to make incriminating statements.  In those instances, Miranda warnings may have been required, even where direct questions were not put to the suspect. Only a detailed review by your criminal defense attorney of the circumstances leading up to and including the interrogation can determine if those police actions violated your Miranda rights and the statements should be suppressed.

What are examples of times when Miranda warnings are not required?

When Miranda warnings are required to be given, but are not given, the straightforward remedy is that the statements and the evidence derived from those statements can many times be suppressed and made inadmissible in the State’s case against you.

There are, however, times when Miranda warnings were not required and the individual made statements in response to questions, only to find those statements later used as direct evidence against them.

The courts have found that certain circumstances do not require that Miranda warnings be advised.  These include:

On the scene general questioning

The usual scenario is being pulled over by a police officer late at night.  After asking you how your night has been going, he will slip in “Have you had anything to drink tonight?”  (which is usually followed up with double-pronged “How much?” and “Two? C’mon, you had more than two, didn’t you?”).  The answers that the motorist gives are not protected by Miranda, because it is on the scene questioning that doesn’t rise to the level of being in custody.   Warnings not needed, but the statements come into evidence against you in your DUI case.  

Volunteered statements

If the officer does not ask you a question, but you decide to give him, in detail, a list of that night’s events, including your whereabouts and contacts with soon-to-be co-defendants,  he does not have to do anything, but take notes as you make his case for him.  Some people think that if they make statements without being questioned, they can come back and use lack of Miranda as a protection.  Remember, it takes questioning by police to trigger Miranda warnings.  If you are going to serve up the elements of a criminal case against yourself, why should an overly polite police officer interrupt your compelling account of the night you incriminated yourself?

Statements made to non-police officers

Miranda warnings are only required during questioning by law enforcement. 

Every now and then, over a couple of Boulevard IPA’s, you decide to tell your neighbor how you could afford the expensive craft beer, because you recently robbed First National Bank.  In fact, by the time you are into the next six pack, you tell him where you hid the money.  Neither of the statements require Miranda warnings.  He is a private party and not law enforcement. And, to make matters worse, after he takes your beer and your stolen loot, he then will collect the reward for turning you in.  Can’t even trust a beer buddy anymore.

And, after you find yourself in the system, remember that, when it comes to Miranda, your probation officer is not law enforcement and not your friend. Thus, admitting that you only had “one hit” is not protected and will land you back in front of the judge, complete with the results of your court ordered drug analysis screen.

Why are the statements you make to law enforcement so important?

The biggest problem with statements and confessions is while many other aspects of a defense can be argued as circumstantial or not showing proof beyond a reasonable doubt, it is hard to argue that the confession that the defendant made should not be believed. 

In other words, while it may be a strategy to attack the credibility of other witnesses against you in a trial; by giving a confession, you become, indirectly, a witness against yourself.  If you make an incriminating statement and it comes into evidence, you can bet that a good prosecutor will hammer that piece of evidence home.

The smart move is always to contact a criminal lawyer prior to speaking with law enforcement. However, if you made statements, before reading this article, don’t start packing your toothbrush just yet.  An experienced criminal defense attorney, especially one that has litigated innumerable motions to suppress, knows how to dissect the circumstances of the statement, including custody, interrogation, waiver, and factors of voluntariness to still make an argument for suppressing your confession.

To get the best possible defense, it is imperative that you retain a seasoned criminal attorney that has tried many criminal cases, early in the process, so that a combination of discovery tools, trial techniques, and case law can be used to your advantage to mitigate, reduce or have your criminal case dismissed completely.

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