Criminal Defense Attorney Addresses Miranda Rights During An Arrest

Criminal Defense Attorney Addresses Miranda Rights During An Arrest

Criminal defense attorney Dale Emch addresses the issue of Miranda Rights in the event of an arrest in his Toledo Blade column, “Legal Briefs.”

Dear Dale: I was arrested recently and held in jail for the weekend. The police did not read me my rights when I was arrested. Will my charge be dismissed because I wasn’t read my rights?


ANSWER: The failure of the police to read you your rights, which have come to be known as Miranda warnings, will not, in and of itself, cause the case against you to be dismissed.

The U.S. Supreme Court, in a case called Miranda vs. Arizona, held that the police must recite certain warnings to a suspect who is being questioned while in custody. Most of us know those warnings through the thousands of times we’ve heard them in movies or on TV. The required warnings are that a suspect has a right to remain silent and that anything the suspect says can be used against him in court. The suspect has a right to have an attorney with him during the questioning and if he can’t afford a lawyer, one will be appointed to him prior to any questioning if he desires.

The idea behind the warnings is to prevent coerced confessions. The court was concerned that custodial interrogations, even those not involving physical brutality or intense questioning, might cause a suspect to unknowingly waive his constitutional right against self-incrimination. Obviously, being interrogated by the police, whether one is guilty or innocent, is a tremendously stressful situation. Reciting the Miranda warnings helps ensure that a suspect’s statement is made voluntarily.

Though that’s been the law since Miranda was decided in 1966, sometimes the police fail to give the warnings. The cure – or punishment, depending on your perspective – for failing to recite the Miranda warnings is that the prosecution cannot use any unwarned statements made by the defendant unless certain exceptions apply. The case against the defendant, though, is not tossed out for failing to give the warnings. But even if a judge excludes the statement, the prosecutor may decide to proceed with the case if the rest of the evidence is strong enough to gain a conviction.

It should also be kept in mind that the police can cure their failure to give Miranda warnings. If a suspect in custody gives a statement without having received the warnings, the police can recite the warnings and attempt to elicit the same information if the suspect subsequently waives his rights. The first unwarned questioning, though, can’t have been coercive or improper.

So, while the first statement could be excluded from a trial, the information gleaned from it can be used as a basis for questioning after the Miranda warnings are administered. The properly warned statement can then be admissible.

In most situations, officers will review the suspect’s Miranda rights and have him sign a document stating that the rights have been given and are being voluntarily waived.

The requirement to give Miranda warnings has been criticized over the years by those who think that it gives a defendant the chance to get off on a technicality. But I once spoke with a well-respected retired Toledo Police detective who said he never had a problem with the warnings. He felt that he was either going to be able to get a suspect to talk or he wasn’t, regardless of whether the warnings were read. He also believed that police who tried playing games with the warnings were needlessly jeopardizing the investigation.

The case against you isn’t going to disappear just because the police failed to recite the Miranda warnings to you. It might, though, prove fatal to the prosecution’s case if your lawyer can get your statement suppressed.”

Charles E. Boyk Law Offices, LLC