As a criminal law attorney, one of the most common questions I receive during criminal consultations relates to when the individual's Constitutional (Miranda) rights were read to them or that they were not read at all.
There is a lot of confusion among citizens and even law enforcement officers regarding when a person's rights should be read to them.
In fact, even when these rights are read, the very reading of those rights can cause confusion as to whether the person is being arrested in the first place.
Many people are under the impression that the police must read their Miranda rights before they ask any questions or any time an arrest is made.
This is not true.
Miranda only pertains to statements that you actually make.
So, if the police arrest you but do not ask you any questions, there is no Miranda issue.
You should also be aware that whether or not the police read you your Miranda rights, if you are foolish enough to make spontaneous or unsolicited statements (not in response to questioning), those statements can always be used against you.
Secondly, the police are free to approach pretty much anyone on the street to simply to ask questions.
The issue at that point is whether it is a "consensual encounter" or, in other words, the person is free to leave.
This is decided on a case by case basis, and the answer turns on whether the "reasonable person" would have felt like they were free to leave.
In some cases, courts have determined that, although an officer may claim the person was free to leave, the very fact that they read the suspect his or her Miranda rights created the perception that the person was being arrested.
Therefore, the police will sometimes avoid reading you your rights immediately.
This is why if you are ever approached by an officer who wants to ask you questions about a crime, but has not read you your rights, you should always ask "Am I free to leave?" or "Am I under arrest?" Why? Chances are that officer may consider you to be a possible suspect and is hoping you might say something incriminating so that he or she can make an arrest and close the case.
If he or she says you are free to leave, then you should do so and contact a lawyer.
If he or she says you are not free to leave, then you should say nothing, except to immediately request a lawyer.
If an officer were to approach you and read your rights, you should never forget that your rights to remain silent and to have a lawyer are in place for good reason.
You should take the reading of your rights to mean that you are definitely a suspect.
Never forget that the second warning states "Anything you say can and will be used against you in a court of law.
" This is true even if the officer says things like "You are not a suspect," "I just want to eliminate you as a suspect," "We just want to clear up a few things," or the all-time favorite "If you cooperate with my investigation, I can help you.
" You should be aware the police are legally allowed to lie, and they often do.
Accordingly, you should always be aware that statements can only be used against you if you make them.
There is a common human instinct that we all have, and that is survival.
The desire to clear oneself of wrongdoing or suspicion derives from that instinct.
However, it is also the same instinct that causes panic.
The antidote against panic is knowledge and preparation.
That is why it is important to know this information if you ever find yourself a part of an investigation.
If you are able, immediately call or consult with a lawyer.
If you are placed by law enforcement in a position wherein you cannot call a lawyer, immediately make a request for a lawyer.