Question: "I was arrested and the police didn't read me my rights. Does this mean the case will get thrown out by the judge?"
Answer: Probably not (but wait, don't leave this page yet).
As a Las Vegas criminal defense attorney, this is one of the most common questions I hear from potential clients, and it comes from what is, in my estimation, probably the most common misconception in all of criminal law. So let's clear it up right now.
Arrests: Hollywood versus Real Life
Here's a common scene in television and movies: A guy gets arrested. The cop actually says "You are under arrest." And then as the handcuffs are locked tight, the cop recites a short speech that goes something like this:
"You have the right to remain silent. Everything 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 appointed for you."
Most people have seen hundreds of arrests on television and in movies play out like this long before they ever have any experience with the criminal justice system in real life. So people think that when they get arrested, the cop has to read them some variation of this speech, and if the cop doesn't, then the case gets "thrown out."
But as a criminal defense attorney who has to explain this on a weekly basis, let me tell you this: Hollywood has lied to you. In real life, a cop doesn't routinely "read you your rights" when he arrests you—because it's not necessary in most cases.
So if the cop didn't read you your rights, there's about a 99% chance it won't have any effect on your case. That's the short explanation. Want to know why? First I have to explain what it actually means to "read someone their rights." Second, I will explain when a cop has to "read you your rights," and third, I will explain the real-life effect of when the arresting officer doesn't "read you your rights."
This might seem pointless since I'm telling you that a failure to read you your rights won't affect your case 99% of the time, but who knows—maybe you're in the 1% group where it will actually make a difference.
When someone who gets arrested says "the arresting officer didn't read me my rights," what rights are they talking about? After all, citizens and non-citizens alike have many rights under the United States Constitution.
In this case, if you're wondering about being read your rights, I'm 100% sure you're talking about your "Miranda Rights." The short speech I typed out above is a variation of the Miranda Warning, which refers to two specific Constitutional rights.
The Miranda Warning gets its name from Miranda v. Arizona, a U.S. Supreme Court case from 1966. In this case, the Supreme Court ruled that when the police arrest a person and want to interrogate him, they have to remind him that he has these two rights:
- The right to remain silent, and
- The right to an attorney.
The right to remain silent means the police can't force you to admit that you committed a crime or make any other incriminating statements. The right to counsel means that if you say you want a lawyer during police interrogation, you get one. Most people know what these rights are, even though they routinely fail to invoke them when they should during a criminal investigation.
So now that we have established that "reading a person their rights" means telling someone they have the right to remain silent and the right to an attorney, I'll explain when these warnings have to be given by police (and when they do not).
When Do Cops Have to Give the Miranda Warning?
The Miranda Warning has to be given after arrest, but only when the police are trying to get you to confess. To use the technical term, a Miranda Warning is required before any "custodial interrogation." Let's break that down.
"Custodial" means you're in "police custody," because you've been formally arrested by police or because, given the situation, a reasonable person wouldn't feel like he was allowed to leave the scene. So if you're in handcuffs down at the Las Vegas Metro station at 400 Martin Luther King Blvd. in one of their white interrogation rooms, you are obviously in police custody. If a police officer walks up to you in the street and asks you your name, you're not in police custody.
"Interrogation" means the officer is asking you questions that are intended to elicit an incriminating response. So asking you where you hid the murder weapon is a question designed to elicit an incriminating response, but asking you for your license and registration during a routine traffic stop is not.
I've given some fairly black and white examples above, but the question of whether a person is under a "custodial interrogation" is sometimes not so clear cut, and many cases that hinge upon that one issue have been taken all the way to the Supreme Court. But let's cut through all that:
99% of the time the arresting officer doesn't have to give you a Miranda warning because by the time the cop is arresting you, he has enough "probable cause" to make an arrest and doesn't really care what you have to say.
Let me restate this point another way:
A Miranda Warning is not a necessary, routine part of an arrest. It only comes into play when the police arrest you and want to force a confession out of you. Failure to give a Miranda Warning means nothing in 99% of cases because the case does not depend upon a confession you gave after you were arrested.
Okay, so what about the 1% of cases where a Miranda Warning is required? What happens when the Miranda Warning is not given? Read about this below.
Failure to Give the Miranda Warning
If the police don't give you a proper Miranda Warning before a custodial interrogation, there are consequences that favor the defendant—but it doesn't mean the case is automatically "thrown out."
As stated above, Miranda Warnings are not required unless the police force a confession out of you after they arrest you. But when police don't give the Miranda Warning, or when they explain it improperly and you don't understand it, you did not "waive your right" to remain silent and right to counsel, and the confession can be "suppressed." Let me explain this.
If you are charged with a crime and part of the evidence the District Attorney wants to use to convict you is your own supposed "confession" (which the police will ironically call a "voluntary statement"), then it is possible for your defense attorney to file a "motion to suppress" those incriminating statements.
The argument the defense attorney makes essentially boils down to this: under all of the circumstances of the custodial interrogation, the defendant did not knowingly, intelligently, and voluntarily waive his rights. If the judge agrees and grants the motion, the confession can't be used in the defendant's trial. In a case where a defendant's alleged confession makes up the bulk of the evidence, this can very well mean the end of the case.
In case anyone reading thinks that this means the defendant could "get off on a technicality," I will leave you with this: false confessions are much more common than you think.
To Sum Things Up…
If the police didn't read you your rights when you were arrested, it doesn't mean your case is getting dismissed. But if you were questioned by detectives after your arrest and ended up incriminating yourself, it may be possible, under certain circumstances, to have those incriminating statements suppressed. If the bulk of the evidence against you is your own statements made before you were properly Mirandized, then the suppression of your incriminating statements could very well lead to the dismissal of the case.
I've tried to make this article as clear as possible, but if you have any questions about what I've written or if you have a criminal case you'd like to discuss with me, call or text me on my cell phone: (702) 580-4936. Don't worry about what time it is – I make myself available 24/7.
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