For the Miranda rule to apply Certain Criteria must be met.
The Miranda rule requires that suspects who have been taken into custody and arrested must be informed of their Fifth and Sixth Amendment rights prior to interrogation and questioning. For Miranda to apply, this means you are under arrest and either brought to a police station in the back of a police vehicle, you are forbidden to leave, you are confined or handcuffed. This means you are in custody for questioning and should be read your rights before any interrogation process occurs.
Voluntary Waiver, Miranda Rights
After you have been read you your rights, the police must obtain a voluntary waiver of those rights before you should be questioned. If you are threatened or promised something by law enforcement just to get you to speak, this can later be disputed to the court that your waiver of rights was in voluntary and your statement should be omitted.
Failure to be Mirandized, Read your Rights
If the police have you in their custody and they fail to read your Miranda Rights to you and they ask you questions, your statements CANNOT be used against you.
However, if you are arrested and questioned and a police offer that fails to read you your Miranda Rights it does not mean a dismissal of your charges. This is a common misconception, it only means, the information and or statements you provided under interrogation could result in that information being excluded from trial.
For example: if you willing divulge any information without a proposed question by law enforcement even though you were not read your rights, this is voluntary information and can be used against you in trial.
It is just best to keep quiet until you have your attorney present. It is very important to let your attorney know all the details prior and after arrest. Your attorney should be able to determine.
Should you talk to the police before or after an arrest?
No, not without a skilled criminal defense lawyer present, this is a very hard rule to follow. This is problematic because when you are questioned about a crime, assuming you are neither a victim nor witness, you will most likely be arrested anyway.
When a police officer questions you about a crime you may be suspected of, people have a normal tendency to want to explain their innocence. Statistically speaking, the more voluntary information you divulge before an arrest is considered admissible information.
Before an arrest it is important to know when speaking to a police officer that you will be completely unaware of what the Police officers already knows in reference to the crime in question. In addition, it is imperative to know that police officers are allowed to lie to you, there are no legal requirements for an officer to tell the truth or divulge anything about the circumstances of the crime in question.
These facts make a challenging scenario even more difficult because if you make inconsistent statements verses what a police offer already knows, the police may automatically assume you are lying and you will be arrested anyway. Any inconsistent answers you supply voluntarily before or after an arrest can be used against you in trial.
Many people in jail have made this serious mistake, deciding to voluntarily divulge information while being questioned before or after arrest. These people could have avoided harsh sentences had they remained silent by simply saying I do not wish to speak with you, I want my Attorney.
Can Not Saying Anything Sometimes Be The Best Defense?
When an individual does decide not engage in any further oral contributions once their Miranda Rights have been read, then this silence can be incorporated during a trial to try and prove a defendant’s guilt or innocence. Keep in mind, however, if a person says nothing before being read their Miranda Rights that can be implemented in court.
For instance, if an individual is taken into custody for homicide, many people would try to absolve themselves of guilt. The prosecution could contend that the silence before the Miranda Rights were administered should be used in court, as to why this individual was not surprised at the charge unless he or she was guilty?
Can I Do Anything About My Lack of Vocalization Going Against Me?
Yes, You can simply supply the phrase, “My lawyer said not to talk to you.”
Will Everyone Think I’m Guilty If I Don’t Supply a Statement?
Normally officers do tend to think when a person will not talk or invoke a lawyer reference, they are guilty. There are many circumstances, however, where the only proof of guilt against the defendant would come from him or her through a confession so it is always best to ask for your attorney before willingly divulging information. You criminal defense attorney will be able to consul you appropriately.