Anyone who’s ever watched a few minutes of a lawyer or cop show on television has no doubt seen and heard a police officer reciting a series of warnings to someone as they spin them around and throw on the handcuffs in dramatic fashion. Those rights being rattled off are called Miranda Rights/Warnings, named after the 1966 U.S. Supreme Court decision in which they were identified, Miranda v. Arizona.

In the event you don’t own a TV (and you’ve been fortunate enough to avoid being arrested), the Miranda Warnings sound something like this, at least in New York State:

• You have the right to remain silent;
• If you give up that right, anything you say can and will be used against you in a court of law;
• You have the right to an attorney and to have an attorney present during questioning;
• If you cannot afford an attorney, one will be appointed to you at no cost;
• Do you understand these rights as I have read them to you?
• Having been advised of these rights, do you now wish to speak to me?

When Miranda is Required

A general misconception is that Miranda Warnings must be read as the officer is cuffing you, and if he does not, you will easily beat the charge. That is not the case, however, and an officer’s failure to Mirandize you at the exact time of arrest does not invalidate the arrest and will generally not result in the charges being thrown out.

Miranda Warnings become relevant and required upon the occurrence of both of the following: 1) you are placed in custody (i.e., in its simplest and most obvious form, you’ve been handcuffed), and 2) you are or will be subjected to custodial interrogation.

Being questioned while in “custody" is not always as easy to recognize as it sounds, and the issue of whether and when someone is actually “in custody" has led to significant litigation. Under the cut-and-dry example here, however (i.e., you’ve been handcuffed), custody has clearly been established, and the officer now must read you Miranda Warnings prior to any questioning of you, with the exception of general pedigree type questions (name, address, etc.).

When Miranda is Not Required

It is important to realize that Miranda does not apply to (that is, does not protect) any statements you make prior to being arrested or even to any statements made after you’ve been arrested but not in response to any specific police questioning (i.e., the quintessential spontaneous statement). And obviously, any statement made to law enforcement in response to questioning after the Miranda warnings have been read (a voluntary statement) is an express waiver of Miranda protections and it’s all fair game. As the warnings above advise, statements made under any of the aforementioned circumstances are admissible and can be used against you at trial.

Miranda as a Sword and a Shield

Although the primary objective of the Miranda Warnings is to advise you of your rights once in police custody, the Warnings also serve to ensure that any knowing and voluntary statement that you do make to law enforcement is admissible at trial, which can severely damage any chance at a decent defense.

Often times, an arresting officer will not advise you of your Miranda Warnings until the last possible second (immediately prior to questioning), thereby significantly expanding your opportunity to make incriminating, and more importantly, admissible statements. As long as you are not being interrogated by the police, there is no need for them to Mirandize you. And there’s no shortage of instances of people eager to admit to anything and everything while sitting in the back of a police cruiser, even though the officer never asked a single question. Again, in that circumstance, everything you said can and often times will come in against you at trial.

Think Before You Speak…or Don’t Speak at All

The admissibility of a particular statement often times becomes a legal question to be decided by a judge after a hearing on the issue of that statement’s voluntariness. And an experienced criminal defense attorney will be able to spot any such issues and advise you appropriately as to how those statements can affect your case.

Unfortunately, however, more times than not the defendant has already catastrophically damaged his case long before the Miranda Warnings even come into play, usually at the side of the road or from the back of the police car, yelling out in frustration or as part of a losing effort to negotiate with the officer. But before you decide to spout off that rant of obscenities or try to justify the offense you committed to the officer, know that such statements will nearly always be admissible against you at trial. The best course of action at this point is to just accept what’s happening to you (you’ve already been arrested…the officer is not changing his mind) and, armed with the information in this article, make an intelligent and rational decision to speak or not to speak to law enforcement…and call an experienced and knowledgeable criminal defense attorney immediately.