Criminal defense attorneys often hear from clients who exclaim in shock, and sometimes in excitement because they think they just beat a case: “I was never told I had the right to remain silent.”  While most of us are familiar with the Miranda warnings from shows like Cops and the like, many people are unfamiliar with its applicability.  So if you’re like me when it comes to reading and you want to know from the very beginning if this is going to be worth your time, this entry will address the fact that cops don’t have to read you your Miranda warnings in many situations and you can incriminate yourself without protection if you’re not careful.

To begin the discussion it’s important to understand the landmark case that precipitated this major change in the law.  Miranda v. AZ384 U.S. 436 (1966) was a criminal case where a man, Ernesto Miranda, was arrested for kidnapping and rape and interrogated by police back at the police station.  After hours of interrogation Miranda admitted to committing the crime.  He was never advised of his Fifth Amendment right to remain silent, and at that time in history there was no requirement for the police to advise him of it under any circumstances.  The case was eventually appealed all the way up to the U.S. Supreme Court where the majority of the Court, led by Chief Justice Warren found that “. . .the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.”  Id. at 444.  Those procedural safeguards mentioned are what are now referred to as the “Miranda warnings.”  The Court spelled out what must be included in this advisement, and it requires that “[p]rior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” Id.

What you might not have immediately picked up on is WHEN the requirement of these warnings is triggered.  It’s NOT anytime a cop asks a person questions, nor is it required at arrest or detention.  The Miranda warnings are triggered ONLY as the Court said, prior to a “custodial interrogation.” Id.  What the heck is that you ask?  Good question, and thankfully the Court provided a wonderfully vague explanation to guide judges, attorneys and law enforcement.  Custodial interrogation as defined in Miranda is “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Id.  There is a very large body of law following this decision that interprets and extrapolates this definition and answers questions about its applicability.


As you just read above, custody is one of the prerequisites to Miranda warnings.  People v. Arnold, 66 C2d 438, 448 (1967) further defined custody as where a person is “deprived of his freedom of action in any significant way or is led to believe, as a reasonable person, that he is so deprived.”  Another useful inquiry is whether a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave. Thompson v. Keohane, 516 U.S. 99, 112 (1995).  Thus, a court in its determination of whether a person was in custody will look at the objective circumstances of the interrogation, not the subjective view of the suspect or the law enforcement officer. Stansbury v. California, 511 U.S. 318, 323 (1994).  It is important to note that a person does not have to be formally arrested for the person to be in custody if a reasonable person would feel she was not free to go.  Whether a person was in custody for purposes of Miranda is an objective inquiry requiring courts to look at the totality of the circumstances. U.S. v. Kim, 292 F3d 969, 976 (2002).  In summary, before Miranda warnings are necessary, the person must be in custody, and whether a person is in custody is a fact-specific inquiry done on a case-by-case basis with the aid of legal precedent to guide the inquiry.


In addition to the requirement that the person be in custody, “interrogation” is also required before police must give Miranda warnings.  An interrogation is either express words or “words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.” Rhode Island v. Innis, 446 U.S. 291, 302 (1980).  Again, like the custody inquiry, a court will look at the objective circumstances surrounding the statements made and “analyze the total situation which envelops the questioning by considering such factors as the length of the interrogation, the place and time of the interrogation, the nature of the questions, the conduct of the police and all other relevant circumstances.” People v. Stewart, 62 Cal.2d 571, 579 (1965).  There are clear cases where an interrogation is taking place, like where a person is formally arrested, taken to the police station and questioned in an interrogation room.  Other scenarios can be more difficult to judge, such as where a person is not formally arrested but is asked to talk to officers at the police station.  The factors mentioned above will influence whether this is considered an interrogation or not.


Officers are only required to give Miranda warnings before there is a custodial interrogation by a government agent.  An officer’s failure to give Miranda warnings when the person is not in “custody” as defined in Miranda and its progeny is not a violation of the person’s rights.  Similarly, if the person is not being “interrogated” Miranda is inapplicable.  Both custody and interrogation are required before Miranda warnings must be given.  One requirement being fulfilled without the other, or neither being satisfied make Miranda violation arguments moot with regard to one’s right against self-incrimination.


If you find yourself being asked questions by officers that you think could subject you to criminal charges, you have the right to remain silent.  In fact, you have no obligation to supply officers information even if someone else is being investigated (with the exception of your name).  There is no legal requirement that one must snitch or be subject to criminal charges him or herself.  If you do not want to be asked questions by police officers you must unequivocally invoke your rights.  This means leaving no doubt that you don’t want to speak to the officer(s).  If I felt I was being investigated I would say something like “I am invoking my Fifth Amendment right against self-incrimination.”  If you don’t want to sound like a nerd, you can say something like “I wish to remain silent.”  An even better and more protecting declaration would include that you want a lawyer.  “I wish to remain silent and I want a lawyer.”  At this point all questioning should cease until your lawyer is present.  When you state that you want a lawyer a separate Constitutional right is invoked and will provide its protection.

One other important thing to remember is that some protections are triggered only when you are in custody.  If you don’t want to be asked questions you should ask whether you’re under arrest.  If you’re not under arrest you should ask whether you’re free to go.  The officer’s response will dictate what you should do next.  If you’re free to go, you should go.  If you aren’t, invoke your rights and then say nothing.  You can waive your previously invoked rights by talking.  Also worth noting is that saying nothing is not an invocation of any right and will provide no protection from being questioned.  Therefore, to stop questioning you must actually invoke your rights.  So when in doubt, invoke your rights, shut your mouth, and let your lawyer do the talking.



*This article does not constitute legal advice.  The information contained in this article should not be relied upon in any legal action, and any law contained herein applies in California state courts only.  It is not a substitute for legal advice and the accuracy of the information may have changed since its publication.  If you have a pending legal case, you should contact a lawyer to address any questions you may have about your case, the internet is not a substitute for professional service.

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