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The Right to Remain Silent and What it Means

By: Nick Thornton

As a criminal defense lawyer, I routinely field questions about when a police officer has to read someone their rights. These rights are often referred to as the Miranda warnings, named after a famous U.S. Supreme Court case, Miranda v. Arizona, 384 U.S. 436 (1966). In that case, the Supreme Court held that law enforcement officers must warn people of certain rights before a custodial interrogation. Under certain conditions after Miranda was decided, law enforcement must advise a person that they have the right to remain silent, anything the person says can be used against the person in court, the person has a right to an attorney, and if the person cannot afford a lawyer, one will be provided at public expense.
Sometimes, I have clients come in and expect their case to be dismissed just because the officer did not read them their rights. This is not always the case. Whether a police officer is required to read a person his or her Miranda rights is a complicated matter. This post is meant to be a quick introduction into the history behind the Miranda requirements and will outline the circumstances where Miranda warnings are required.

CONSTITUTIONAL BASIS: The Miranda warnings are based on the Fifth Amendment’s guarantee that “no person shall be compelled in any criminal case to be a witness against himself.” The Fifth Amendment protects against self-incrimination, which is testimony that would give evidence the individual reasonably believes could be used against the person in a criminal case. As a general matter, the Fifth Amendment applies only to natural persons—not corporations, associations, organizations, or partnerships. The privilege can only be asserted by the person who will be incriminated by the statement and/or attorneys acting on that person’s behalf. It does not protect a person whose statements will incriminate others, meaning a person cannot plead the Fifth to protect a friend or relative. It protects only incriminating statements. It does not protect physical or non-testimonial evidence like a blood sample, writing sample, voice exemplars, or fingerprints.

MIRANDA CASE: In 1963, Ernesto Miranda was arrested for the kidnapping and rape of a young girl. At the time of his arrest, law enforcement had only circumstantial evidence linking him to the crime. About two weeks after the alleged kidnapping and rape, Miranda was interrogated by law enforcement officers. After several hours of intense questioning, Miranda signed a confession. In the confession document, there was a typed statement: “"I do hereby swear that I make this statement voluntarily and of my own free will, with no threats, coercion, or promises of immunity, and with full knowledge of my legal rights, understanding any statement I make may be used against me." However, Miranda was never informed of his right to counsel. Before he confessed, he was never told of his right to remain silent or that the statements he made in the interrogation would be used against him at trial. At trial, Miranda’s court-appointed lawyer objected to the confession when the prosecutor tried to introduce it, arguing the statement was coerced and not voluntary. The attorney’s objection was overruled. Miranda was convicted and sentenced to a lengthy prison term.
At the Supreme Court, Chief Justice Warren delivered the opinion of the Court. Chief Justice Warren wrote that police interrogations are designed to be inherently coercive. The Supreme Court held that for a confession to be admissible, a suspect must be made aware of his rights and then knowingly, voluntarily, and intelligently waives his rights. The Supreme Court went further, noting that if a suspect chose to exercise his right to remain silent, the interrogation must cease. If the person indicates he wants an attorney, the interrogation must cease until an attorney is present and the person has a chance to talk with the lawyer. The Court also noted that a person has a right to have his lawyer present during questioning. Miranda’s conviction was overturned.

TRIGGERS BEFORE MIRANDA REQUIRED: The police do not always have to read a person their Miranda warnings before questioning them. There are two requirements or triggers that must be met before the police are required to read the Miranda warnings: (1) a person must be in custody; and (2), the person must be interrogated. Both triggers must be met at the same time. Each trigger is a loaded term, having a specific legal meaning.

A. The Custody Requirement
Before an officer is required to read the Miranda warnings, the person must be in custody. North Dakota courts have defined “custody” for Miranda purposes rather narrowly. “A suspect is in custody when there is a formal arrest or restraint on the suspect’s freedom of movement to the degree associated with a formal arrest.” A “formal arrest” is the taking of the person into custody and is made by the actual restraint of the person or by the person’s “submission to the custody of the person making the arrest.” Courts look at objective factors to determine whether a person was in custody for Miranda purposes. Courts are concerned with how a reasonable person in the suspect’s position would have understood his situation. The officer’s subjective intent and the suspect’s subjective views are considered, but the reasonable person standard controls. The person is in custody if a reasonable person under the circumstances would feel that his freedom of action or movement was denied in a significant way. Stated differently, the question becomes whether a reasonable person would feel as though he or she was free to leave under the circumstances.

The clearest situation where the person is in custody for Miranda purposes is when police tell the person, “You are under arrest.” Most situations, however, are not that clear. The investigation/ detention/arrest dynamic is often very fluid. For example, most traffic stops are not considered custodial for Miranda purposes even though a reasonable person would not feel free to drive off during the encounter. These situations are incredibly fact specific. Law enforcement will sometimes seek to avoid reading Miranda by telling people who are interviewed in a police squad car or at the police station, “you aren’t under arrest, I just have the door shut for privacy. You can leave if you want.” If an officer tells you that, it may not be in your best interests to continue with that conversation because any information law enforcement gains can be used against you. The easiest way to determine whether you are in custody for Miranda purposes is to ask two questions: “Am I under arrest?” and if the officer says no, “Am I free to leave?” If you are free to leave, it is probably in your best interests to do so.

B. The Interrogation Requirement
In addition to the custody requirement, the Miranda warnings are only required if the person is interrogated by law enforcement. Interrogation generally means “questioning initiated by law enforcement,” but courts have interpreted interrogation more broadly. Now, it means any action that is reasonably likely to illicit an incriminating response from the person. Volunteered statements—statements that were not initiated by law enforcement—are not protected. The Miranda warnings are not required if the questioning is done by someone other than law enforcement (e.g., private security, store personnel, another third party). Interrogation clearly includes direct questions by law enforcement about a particular crime such as “where did you throw the gun you used when you shot the store clerk?” It also covers situations where the police make statements knowing that it will be likely to cause the person to respond with incriminating information. For example, if law enforcement knows a suspect is religious and they say to the suspect that “God will not forgive you unless you confess your sins,” that will likely be construed as an interrogation for Miranda purposes. Again, the court will consider whether a person is interrogated using an objective standard by examining the totality of the circumstances. This, like the custody requirement, is incredibly fact specific.

If you find yourself in a situation where law enforcement is asking you questions, you should consider asking the officer whether you have to answer the questions. “Officer, do I have to answer your questions?” If the officer says no, you should consider not answering the questions.

WHEN MIRANDA WARNINGS NEED NOT BE GIVEN: As mentioned above, there are numerous circumstances when the Miranda warnings do not need to be read to a person before asking him or her questions. Some examples include:
• The person is not “in custody”;
• The person is not being “interrogated”;
• The person is not a suspect – a mere witness or a person who may know something about a crime;
• Law enforcement tells the person he or she is free to leave;
• Law enforcement is not conducting the questioning, presuming the questioning is not done at the request of law enforcement directly on law enforcement’s behalf;
• The encounter is for a routine traffic stop, including field sobriety tests and the implied consent advisory;
• The questions are routine booking questions – name, height, weight, etc.; and
• The questions are reasonably motivated out of a concern for public safety. For example, if a law enforcement officer arrests a suspect who was armed during the offense but is not armed when arrested, a police officer may ask “where did you throw the gun” before the gun is found be a member of the general public.

REMEDIES FOR MIRANDA VIOLATIONS: Now that I have explained when Miranda warnings are required and when they are not, the question becomes what remedies are available if the police fail to read Miranda when it is required. Generally, statements made in violation of Miranda cannot be used to establish the person’s guilt. Remember, however, that physical evidence obtained as a result of the inadmissible statement is still admissible. For example, if the police obtain this statement-- I shot Tom Jones and threw the gun in the river by Dawson’s bridge—during a custodial interrogation where Miranda was not read, the statements may be suppressed but the gun found as a result of the statement can still be used at trial. In other words, just because Miranda was violated does not mean a case will automatically be dismissed. It only means that the statements will likely be suppressed. Further, even if the statements are inadmissible to prove guilt, the statements may still be used for other purposes like impeachment. That means that if the defendant testifies at the trial and says, “I never shot Tom Jones and I never threw the gun in the river by Dawson’s bridge,” prosecutors could use the previously suppressed statement obtained in violation of Miranda to attack the defendant’s credibility, essentially using it to prove that the defendant was lying.

ASSERTION OF MIRANDA RIGHTS: In order to exercise your rights, you have to know how to effectively assert them. I have represented thousands of people in criminal cases. I hear “I know my rights,” every day, but find it shocking how few people actually know how to effectively assert their rights. If you ever find yourself being questioned, here is an example of how to do it:

Officer: Hey. Stop right there. I’d like to talk with you.

Citizen: Am I under arrest? Do I have to talk with you? Am I free to leave?

Officer: No, you don’t have to talk with me. No, you cannot leave. I am detaining you.

Citizen: I am choosing to remain silent and I will not speak with you without an attorney present.

There are other ways to do this, but the Court has made it increasingly difficult to assert a person’s rights. You must clearly and unequivocally invoke your rights to remain silent and to counsel, and then stop talking! If police keep asking questions, your answer needs to remain the same: I am choosing to remain silent, and I will not speak to you without an attorney present. Say it over and over if need be, but say nothing else. Do not ask whether you will be arrested or what will happen at court. Do not talk at all. “I am choosing to remain silent and will not speak with you without an attorney present” is the only thing that you should say. Anything else may be construed as an equivocal assertion of rights and not protect your rights under Miranda.

CONCLUSION: In summary, your Constitutional rights are important. Two of your most important rights are the rights to remain silent and the right to a lawyer. To protect these rights, the Supreme Court in Miranda v. Arizona required law enforcement to warn you of your rights and get you to waive your rights before testimonial statements or admissions can be used against you. That said, law enforcement may or may not need to read you your Miranda rights if you are not in custody or not being interrogated. In order to protect your rights, you should ask whether you have to talk with the police and whether you are free to leave. If law enforcement still wants to talk with you after asking those questions, you should clearly and unequivocally assert: I am choosing to remain silent and will not speak with you without an attorney present,” and you should not say anything else.

At the Fremstad Law Firm, we strongly believe in your Constitutional rights. If you have been charged with a crime and you think your Miranda rights have been violated, please be sure to speak with an experienced criminal defense attorney like me, Nick Thornton, right away. I can be reached at or (701) 478-7620.


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