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Are My Miranda Rights Dead?

A question we hear all the time is: The police didn’t read me my rights when they arrested me, doesn’t that mean I get my case dismissed?

The answer is no. Unlike what we see on TV, simply being arrested does not mean that an officer must read you Miranda warnings. Miranda warnings don’t directly affect the legality of an arrest, but deal primarily with admissibility of statements and evidence discovered as a result of those statements. These warnings come from the now famous case of Miranda v. Arizona. In that case, the Supreme Court held that if law enforcement wants to interrogate someone in custody, their statements may only be used in court if the suspect is first informed of their rights, and they knowingly and voluntarily waive those rights.

As with many areas of our lives, when it comes to statements, our constitutional protections have been eroded. For example: With the right to remain silent. We now know simply remaining silent is not enough to trigger the protection of the 5th Amendment. In 2010, the Supreme Court gave us one of the most frustrating decisions when it comes to this area of law, Berghuis v. Thompkins. In that case, the suspect, Mr. Thompkins, was given a Miranda warning before being questioned, but did not explicitly invoke or waive his right to remain silent during the three hour mostly silent interrogation.

The court held that the mere act of remaining silent was insufficient to imply that Mr. Thompkins invoked his right to remain silent, and any answer that he gave, even after a lengthy silence, could be implied as a waiver of his 5th Amendment right. What does this mean for you? You must positively assert your 5th Amendment right to have these protections. So how do you invoke your 5th Amendment rights?

You must say, “I assert my right to remain silent. I assert my right to counsel, and I wish to terminate this interview.” If you don’t, there’s no limit on how long the government can question you. This area of law is fraught with peril and gets a lot of good folks in trouble, even if they’re innocent. Your Miranda rights aren’t dead, but they’re on life support. To protect yourself, invoke your right to remain silent, and then exercise that right.

Tell the police you want to terminate any questioning before speaking with your attorney, and don’t waive your rights. If you have any questions about Miranda warnings, call U.S. LawShield and ask to speak to an independent program attorney.

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