“You have the right to remain silent and to refuse to answer questions; anything you say can and will be used against you in a court of law; you have the right to an attorney; if you can afford an attorney, one will be provided to you free of cost.” Everybody has heard cops on TV say these words whenever they place a person in handcuffs. A common point that prospective clients make when they first meet me though is that the police never read them these rights. Thanks to TV, movies, and other forms of pop culture, just about everyone knows what the Miranda rights are. Despite this truth, however, I am not so sure most people actually understand what they actually are, when police officers are required to give them, and what happens if the police fail to adequately advise someone of their rights when they are arrested. This is a multi-part blog post dedicated to clearing up these issues.
The whole point of Miranda is that if the cops don’t adequately read the rights to you, then they can’t use any of your statements against you in court. So if they never read you your rights at any point, they either screwed up or they didn’t care what you had to say. Like anything else with the law though, everything has multiple exceptions. So none of what you read is intended to be substitution for the advise of a competent lawyer.
Unlike what you may have seen on television, police officers DO NOT read people their Miranda rights when they place them in handcuffs on the street. There’s are two strategic reasons for this. The first is logistical. If the cops do legitimately read you your rights and then take a statement from you, but at a later point either you or your lawyer denies that the police ever adequately read you your rights, how can they prove they did? They would need some sort of a document that you either signed or the reading of the rights would have to be recorded in some way. That doesn’t happen on the street. The second reason is a little more nefarious. The police want to take a statement from you because they want you to confess. They are worried that the initial shock of being placed in handcuffs will induce the arrestee to request a lawyer immediately. They don’t want this to happen because then they can never question you. So when you’re at your most surprised, shocked, and upset, the police reason that it may not be the best strategic time (for them) to tell you that you have rights, including the right to contact a lawyer, and that your life isn’t over.
This is a strategic gamble the police make because although they don’t want to read you your rights early in the process (or ever really), if they start asking you questions and you answer them without being read your rights, then those statements get suppressed. So the natural question is when legally must the police read your rights to you.
Under New York law, if an innocent person in a similar situation feels like they are not free to leave, then they are legally under arrest. This is true whether the police ever told the person they are under arrest or if the police even think the person is under arrest. In other words, its how you feel that determines whether you are under arrest and not what the cop says, does, or thinks. Granted, what the cop says and does may make you feel or not feel like you are under arrest depending on the circumstances (handcuffs you, tells you are under arrest, locks you in a cell, yells at you, etc). Once a person is legally considered under arrest then anything the person says will be suppressed if (1) he was never read his rights AND (2) his statement was in response to a police interrogation.
Part 2 of this post will describe what is considered a police interrogation.