Breaking down Miranda

August 7, 2018 Blog

Let’s be honest. Most of our knowledge of Miranda rights comes from television crime shows and movies where the bad guy is arrested and read his Miranda rights at the time of the arrest. But what do we really know about Miranda rights and who is Miranda anyway?

The name “Miranda rights” comes from a case entitled Miranda vs. Arizona and the “Miranda” in this case was a man named Ernesto Miranda. In 1966, the Supreme Court ruled in this case that if you are simply going about your business and the police stop you, according to United States law you are not obligated to say anything to the police and in fact you have “the right to remain silent.” Your “right to remain silent” along with other rights was thereafter referred to as “Miranda rights.”

Here are the Miranda rights:

· You have the right to remain silent.

· If you give up your right to remain silent, anything you say, can and will be used against you in a court of law.

· You have the right to have an attorney present.

· If you cannot afford an attorney, one will be appointed to represent you.

The arresting officer is obligated to inform you of your Miranda rights in a way that is understandable to you and before they are allowed to start asking you questions and begin an interrogation, they must be very sure that you understand these rights. When used properly by the police, Miranda rights act as a deterrent for the police to try to use any type of deception or force in order to get you to admit to wrongdoing or any other information that may incriminate you.

Let’s break it down:

You have the right to remain silent

This means exactly what it says. You do not have to say anything if you are stopped by a police officer, but in order not to appear rude, you can just say, “I decline to answer” or “I would like to remain silent” or “I would like to speak to my attorney first.” This may seem like an easy thing to do, but it is not that easy in a real-life situation. Police officers can be intimidating and may try to get you to talk or ask seemingly-innocent questions, but you should not talk to the officer until you first have the opportunity to speak with an attorney. Some officers are very friendly and you may feel comfortable around them, but don’t be fooled! Even if you are innocent, the police are trying to get you to incriminate yourself, but if you stay silent, you won’t run the risk of saying something that you can’t later rescind. Even if you start talking to the police, at any given time you can change your mind and inform the police that you wish to remain silent. This is called “invoking” your right to remain silent after you have waived it.

If you give up your right to remain silent, anything you say, can and will be used against you in a court of law.

If you can resist the urge to talk to the police officer, try to be aware that anything you say can come back and bite you – especially if your matter goes to trial. Try to remember that what may sound innocent at the time of your arrest, could incriminate you later.

You have the right to have an attorney present.

You are allowed to be represented by an attorney as soon as you have been arrested and processed and you do not have to speak with the arresting officer until you have had the opportunity to speak with your attorney first.

If you cannot afford an attorney, one will be appointed to represent you.

Your financial situation may be such that you cannot afford to hire your own lawyer. In these circumstances and provided you qualify, the judge may appoint a public defender to defend your case. The public defender’s duty is to defend people who can’t pay for a lawyer and they are paid out of public funds.

Other things to note about Miranda

Contrary to popular belief, the police are not REQUIRED to read the Miranda rights to you and the only instance where the officer should inform you of your Miranda rights is if they are questioning you in custody. If they are questioning you and you are in custody and they haven’t read you your Miranda rights then anything you say may be thrown out of court. But remember, if you exercise your right to remain silent you won’t have to worry about what you say being used against you in court.

Many individuals facing an arrest mistakenly believe that they will automatically win their case in court or the case will be thrown out of court just because they weren’t read their Miranda rights, but that is not always the case. In addition to the absence of the Miranda rights being read and understood, all three of the following would theoretically need to occur in order for your charges to be potentially dropped or for you to prevail at a trial, and even then, would still not mean that your case would be automatically thrown out of court:

1. You are stopped in such a way that you do not reasonably feel free to leave;

2. The police say certain things or ask you questions that could make you say incriminating or negative things about yourself regarding a criminal case; and

3. The police ask you questions that could make you say incriminating or negative things about yourself:

a) prior to reading you your Miranda rights.

b) after reading your Miranda rights to you incorrectly or not completely.

c) without making sure that you understand the Miranda rights that were read to you.

d) and ignore your wish to remain silent and continue to pressure you with questions and information despite your refusal to talk.

Miranda Exceptions

Before Miranda: This is where Miranda gets a little tricky. There are certain circumstances (a DUI stop for example) where verbal statements you make before you are arrested and taken into custody and BEFORE you are read your Miranda rights where those statements can be used in your trial, regardless of whether or not you have been read your Miranda rights.

Loitering: If you are loitering in Florida and you are questioned by the police, you must show them some form of identification and you will be asked to explain your actions. If you don’t speak to the police you can be arrested for loitering.

Roadside Stop If you have been pulled over for a traffic violation, you might feel like you have “the right to remain silent” when in fact the police officer can request to see your registration and driver’s license and is allowed to ask you standard questions. This type of suspected traffic violation is not considered custodial, so Miranda is not applicable here.

Imminent Threat When an issue of terrorism or public safety arises and in the case where law enforcement is in the position of having to protect the general public from danger, the Miranda warning are not required when police are questioning individuals.

If you have been arrested in South Florida, contact the Misdemeanor Clinic. We are available 24-hours a day, 7 days a week. Call us at (561) 621-0023 or visit our website at

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