It happens all the time. A client will walk into my office to discuss a criminal matter and even before I can start the preliminary questioning about the situation, the client exasperatedly proclaims, ?the police did not read me my rights.? Usually, the client believes that this is a case-winning fact and one that I ought to care much about. However, the truth of the matter is that the police do not have to read the widely-known ?Miranda rights? to each and every person they arrest. And even if they do violate the person's 5th Amendment rights, this may not have any impact on the ultimate outcome of the case.

The reason is that under current constitutional law, the police only have to read the Miranda rights when they are conducting ?custodial interrogation? of the suspect. That is, if the police do not attempt to question the person about a crime, they do not have to advise the person that they have the right to remain silent, to an attorney, and so on. Simply asking an arrestee his name and where he lives would not qualify as ?interrogation.? The police must be attempting to elicit inculpatory information from the suspect about a possible crime in order for it to be said the suspect was ?interrogated?.

In short, it is only when two distinct criteria are met that the Miranda requirement is triggered: (1) the suspect must be in ?custody? (a very fact specific inquiry) and the (2) the police must attempt to question the suspect about a crime they are investigating. If neither of these are satisfied, there is no Miranda violation. For instance, if an arrestee volunteers statements to the police, sometimes done as a last ditch effort to avoid arrest, the police and prosecutor are completely free to use those statements at a later trial, even when the defendant is never Mirandized. Because the police did not interrogate the suspect, but merely listened to what the suspect had to say on his own, one of the two necessary criteria discussed above are absent. Lesson to take from this: it is almost always true that talking to the police is a bad idea.

Furthermore, it is not that uncommon for the police to feel that they have no need to immediately question the suspect due to the fact he or she believes they have all the evidence they need in order to sustain an arrest (and ultimately, a conviction). Perhaps the officer witnessed the crime first-hand, or there are numerous witnesses at the scene who immediately point the finger at the arrestee. In either case, the officer may have no need to question the defendant and, therefore, no need to read the Miranda warnings at all. The bottom line is that not every person arrested has a constitutional right to have the Miranda warnings read to them, but rather only when they are subjected to custodial interrogation.

But this is not the end of the story. Let's assume that the police in fact engaged in custodial interrogation and failed to properly Mirandize the suspect. This constitutional violation may not have any practical impact on the resolution of the defendant's case. The remedy available for such a violation is not that the case is dismissed (as many people incorrectly believe), but rather that the statements obtained as a result of the violation will be excluded from trial. If the state has ample other evidence to sustain a conviction, the exclusion of these inculpatory statements will not make much of a dent in the overall strength of the state's case. The state may not care that these statements are inadmissible given all of the other evidence it can still put before a jury. And this can obviously impact plea bargaining leverage as well. Now, of course, if the state's case is weak and the statements are really needed in order for it to carry its burden at trial, then the police misconduct ends up being a huge chip that the defense can use during plea negotiations. And in rare cases, if the state's case is so weak that without the use of the defendant's statements it can not make out a prima facie case, the case may be dismissed upon motion.

So the next time you here someone complain that they were not ?read their rights,? do not get the impression that they are out of the woods. For more see www.morrisonandnicholson.com