Some of the most important rights stem from the Fifth Amendment, often referred to as you Miranda rights. It is critical to understand how these protections play into the arrest and prosecution processes, and how they can help in your criminal defense.
What are Miranda Rights?
These rights include the right to remain silent, the right to be notified that anything said can be used against you, that you have the right to an attorney, and that if you cannot afford an attorney, the government or the state will appoint one if you desire.
When you are arrested, the police are required to notify you of your Miranda rights. For an admission to be admissible under the Fifth Amendment, if you are in custody you must be notified of your Fifth Amendment rights.
Naturally then, it is critical to know what it means to be in custody. Custody means you are actually arrested, that is you are placed in handcuffs and/or held by the police. “Custody” also means that you are detained by police and that you are not free to leave. It does not include a traffic stop in which the police ask you questions.
However, if your freedom of movement is limited significantly and a reasonable person would not believe he or she is free to leave, then that would be considered as being in “custody” for Fifth Amendment purposes.
If you voluntarily go to the police for questioning, whether at a police station or voluntarily agree to meet with law enforcement elsewhere, this may not be considered a “custodial interrogation,” because you voluntarily agreed to meet with the police and submit to questioning by law enforcement.
Anytime you are asked to submit to questioning by law enforcement and you may potentially incriminate yourself, it is very important to request an attorney or to contact and consult with an attorney before submitting to police questioning.
Right to Remain Silent
The key to Miranda rights is that all suspects in “custody” have the right to remain silent in the fact of a criminal investigation. When you receive your Miranda rights warning you have two options regarding the right to remain silent: do nothing or assert your right to remain silent.
First, you can do nothing. If you do not respond at all, the police can continue to question you. The courts have determined that remaining silent really means nothing.
It does not waive your rights, it does not mean that you have asserted your right to remain silent, or that you have invoked your right to consult with an attorney or waived your right to have an attorney present. But silence does not prevent the police or law enforcement from continuing to question you.
Asserting the Right to Remain Silent
Far better than simply saying nothing, you can formally assert the right to remain silent. To be an effective indication, it must be explicit, unequivocal, and unambiguous.
If the police do not believe that you have clearly invoked your right to remain silent, they can continue to question you. Once you invoke the right to remain silent, the police cannot ask you about anything relating to that crime.
At that point, all questioning must stop. This is a guarantee afforded by the United States Constitution and supported by vast amounts of case law.
Request for Criminal Defense Attorney
You may also request an attorney, and you should request an attorney. Like the right to remain silent, you should make the request clearly. When you request an attorney, the police must stop all questioning immediately until an attorney is present.
Police also cannot wait for your attorney to leave your side and then interrogate you. Any questioning must occur only with your attorney present once you have requested one (unless you voluntarily waive your right to counsel).
There are two exceptions. First, if you say that you want to start answering questions after you initially stated you refused to answer questions without an attorney present, then the police can again ask. This effectively waives your right to remain silent. Second, the police can restart interrogation if you are released after 14 days.
Assert your rights with an Attorney
Any time that you are charged with a crime or you are the target of a criminal investigation, no matter how serious, to consult an experienced Miami criminal lawyer to ensure that you properly assert your rights.
Do not risk missing your opportunity to protect yourself by not doing so. Many people mistakenly believe that if they speak to the police or law enforcement and only deny everything they are asked by the police, they don’t need an attorney present.
This may be a big mistake. Even answering “No” to all questions or denying everything the police or law enforcement ask, can have a very negative impact on your case. If you deny everything or answer “No” to all questions, this may serve to incriminate you because the police know that you answered certain questions falsely.
By consulting with an experienced Miami criminal attorney, you will protect yourself and preserve all rights that are guaranteed to you by the United States and Florida Constitutions.