AMADEO: Hopefully You Never Get Arrested, But If You Do Here’s A Miranda Checklist

Nobody wants to be arrested. Nobody plans to be arrested. But sometimes these things happen.

Whether you’re guilty or innocent (especially if you’re innocent) you should have a basic understanding of your rights. Particularly your Miranda Rights or the Miranda warning. This is an extension of your Fifth Amendment right to not incriminate yourself, as well as your Sixth Amendment right to legal representation.

Since nobody wants or plans to be arrested, we often don’t have our attorney with us at all times as that would be impractical and we’re not mentally prepared to speak on our own behalf to the authorities with a guarantee of not incriminating ourselves (which can happen even if you didn’t actually commit the crime you’re being arrested for).

Obviously the next best thing is to understand the legal mechanisms of Miranda, which is a bit more detailed than just obeying your inner monologue’s order to “shut up.”

Sometime around when the cuffs are being slapped on, your arresting officer will act on the legal compulsion to read you your Miranda Rights which you’ll be familiar with if you’ve watched enough police procedural shows.

But sometimes an officer doesn’t read you those rights. What if they don’t? In either case, here’s your Miranda Checklist for exercising your rights and making sure you don’t wrongly incriminate yourself or have those rights violated in some way.

When Does Miranda Apply?

Miranda Warnings apply when one is in custodial interrogation. This means two things:

— Custody means that the defendant was not free to leave. This is often a controversial topic in the state of Michigan as a person can be in custody in their house, in a car or a jail cell.

— Interrogation is defined as when the police officer is attempting to elicit an incriminating response from someone in custody. According to Michigan case law, this means the police are asking questions that go beyond mere formalities.

Is the warnings are not sufficient, can the statements be suppressed?

To have warnings that are sufficient, the police are supposed to state the following:

“You have a right to remain silent. Anything that you say can and will be used against you in a court of law. You have the right to an attorney and if you cannot afford an attorney one will be appointed to you. Do you understand these rights.”

There is case law in Michigan that states if the warnings are not read correctly or at least get the message across of the above-listed statements, any incriminating response may be suppressed through a concept called the Exclusionary Rule.

What are the dangers of waiving my rights?

This is something that the defendant should never do. While it may seem arbitrary to many, the idea of waiving your rights to hear those 5 statements followed by a question could be the difference between freedom and incarceration. According to Michigan law, when one waives their rights it must be done: Knowingly, intelligently and voluntarily. If the defendant was no coerced to forgo their rights they should go through the process.

Do the police have to reinitiate the Miranda Warnings if they question a defendant a second time?

The short answer to this is yes. More often than not, the defendant will waive these rights after hearing them once. This is a bad idea and the defendant should make the police go through the process or providing their rights a second time.

Can Pre-Miranda silence be used against a defendant?

This is probably the most valuable question to ask. If you are ever questioned about a crime, you should say the following: “I did not do it, I am invoking my right to remain silent and if you want to question me further I want an attorney present.” If an individual does not provide a response their silence can be used against them.

The issue of Miranda Warnings is truly a battle that asks what questions and statements can be utilized against the defendant and which statements cannot. Having the knowledge of knowing your rights can protect the future of you and your family.

In the United States you are presumed innocent until proven guilty, which means that it’s the job of police and prosecutors to prove guilt, rather than the job of the suspect to prove innocence. As Americans we enjoy a criminal justice system that was intended to work this way as per the thoughts and beliefs of our nation’s founders.

Bill Amadeo is a partner at the law firm of McManus PLLC in Ann Arbor, Michigan. He works as an associate for Grabel and Associates on criminal matters. Bill can be reached at: [email protected]

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