“You have the right to remain silent.” Aside from being something you hear while watching a crime drama, these are words you probably never want to hear said to you. If law enforcement is uttering these words, it is often with handcuffs jingling beside them and flashing lights in the background.

The well-known “Miranda Rights” stem from a landmark 1966 U.S. Supreme Court case, Miranda v. Arizona, in which a defendant had been interrogated for several hours without being advised of his Fifth Amendment rights against self-incrimination. The interrogation led to a written confession under hostile circumstances that the Supreme Court later found unconstitutional.

Prior to Miranda, Fifth Amendment rights had been associated with courtroom testimony, and “pleading the Fifth” under cross-examination. Miranda extended these privileges (the right not to be forced to testify against yourself) to any setting outside a courtroom where “freedom of action is curtailed in any significant way.”

The Supreme Court recognized the inherent imbalance of power in a custodial interrogation – an individual, surrounded by officers or detectives in an uncomfortable setting, unaware that he or she does have a right to remain silent. In a “custodial interrogation”, a defendant must be advised:

  • They have the right to remain silent
  • Anything they say can be used against them in a court of law
  • They have the right to the presence of an attorney
  • If they cannot afford an attorney, one will be appointed for them prior to questioning if they so choose

These rights are triggered once someone is under an “in-custody interrogation” during a criminal investigation. Generally, this means that they are being questioned under circumstances that most reasonable people would not feel free to leave and walk away.

What is a Custodial Interrogation, and when do Fifth Amendment Rights Come into Play?

Whether a person is “in custody” during questioning depends on the circumstances involved and the potentially coercive factors at play. Courts rely upon an objective “reasonable person” test – under the situation involved, how likely would an average person feel their liberty was restricted and they should exercise their right to remain silent?

The Fifth Amendment holds that no person “shall be compelled in any criminal case to be a witness against himself.” While a person is free to waive this right and make self-incriminating statements, interrogating officers must advise the person of their rights prior to any statements that are “confessional” in nature.

Additionally, Miranda safeguards apply not only to direct questioning, but to the interrogation process. This can include any words or actions on the part of police that are “reasonably likely to elicit an incriminating response from the suspect.” (See Rhode Island v. Innis, 446 U.S. 291, where police talked in the suspect’s presence about the need to find a murder weapon before children at a nearby school might find it, causing the suspect to blurt out the weapon’s location.)

Effects of In-Custody Confessions Made Without Miranda Warnings

Courts have repeatedly held over the last half-century that incriminating custodial statements made before Miranda warnings have been issued cannot be introduced as evidence at trial. For that same amount of time, law enforcement officers have tried to stretch the meaning of this rule, and extract voluntary confessions without triggering a Miranda situation. They will delay arresting you, or repeatedly say you are free to go anytime (even if you are surrounded by officers carrying weapons), in order to claim later that it was not a custodial interrogation.

This is easier for law enforcement to pull off in white-collar criminal investigations, because they can frame an interview at the suspect’s home or office as completely voluntary when it’s not. A suspect in these cases may not feel they are under interrogation, or about to be arrested, while freely giving potentially damning statements.

It is important for anybody to remember – whether they are at a bloody crime scene or sitting in an executive suite – that they have critical Fifth Amendment rights, and a right to stop and speak with an attorney at any time.

Our Tampa Criminal Defense Law Firm Can Help Protect your Miranda Rights Against Self Incrimination

You have the right to an attorney. Remember that anytime you find yourself under police questioning. At Trombley & Hanes, we are available to help any point during a criminal investigation. Even if you feel “the cat is out of the bag”, we will review all statements, circumstances, and facts of your case to determine if any potentially incriminating statements can be stricken and barred from your case. If you are being investigated, charged, or simply have questions about this process, talk to our Tampa criminal defense attorneys today.


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