Failure to Mirandize

Failure to Mirandize – Protection from Self-Incrimination

If you were not read you rights, we might be able to get the charges against you dropped.

There are numerous defense strategies that are common in the field of criminal defense. One of these is not actually a defense strategy, but a violation of your constitutional rights. If your attorney can prove that you were not read your rights at the time of your arrest, that you were not provided legal counsel during questioning, or that providing information might lead to self-incrimination, the charges against you could be dropped or your case dismissed.

It doesn’t matter if you were in Tarrant County, Dallas County, or any other city in Texas; your 5th Amendment rights protect you from self-incrimination, intimidation, and coercion anywhere in the United States.

Fifth Amendment Rights from Original Bill of Rights Document

Fifth Amendment Excerpt from the First Proposed Bill of Rights in 1793

If you have watched any TV shows with detectives program even once, you have heard the familiar words, “You have the right to remain silent. You have the right to an attorney. If you cannot afford an attorney, the court will appoint one for you.”  To clarify the specific rights you have if arrested for a crime:

  • You have the right to remain silent and not be a witness against yourself as provided by the Fifth Amendment to the U.S. Constitution and the 1966 U.S. Supreme Court decision in Miranda v. Arizona, which is where the term “Mirandize” comes from.
  • Article I, Section 10 of the Texas Constitution also provides you the right not to give evidence against yourself.
  • Under both the state and federal constitutions, you have the right to have an attorney present for all questioning and to have an attorney appointed for you if you cannot pay for one yourself.

The situation you see on television where the Miranda warnings are given as the detectives slap the handcuffs on a person is not always how it works in reality.

What is the Goal of the Fifth Amendment?

The Fifth Amendment was updated to protect people from unfair prosecution and incarceration by preventing:

  • Self-Incrimination
  • Coercion
  • Entrapment
  • False Imprisonment

Custodial Interrogation Miranda Warnings

Police, investigators, and law enforcement officers are not required to give you Miranda warnings prior to any interrogation. They can bring you in to the police station and ask you questions about your possible involvement in a crime. You do have the constitutional right not to answer. But, officers are not required to tell you that. They only have to Mirandize you if you are under arrest or what is called “custodial interrogation.” If you are “free to leave,” you are not in custody and the officers do not have to Mirandize you.

Officers often avoid arresting someone so they do not have to inform the person of their right to remain silent.

How Can You Avoid Getting Tricked Into Talking?

If an officer tells you that you are under investigation, or brings you to the police station to give a statement or for questioning, always politely refuse to speak until your attorney is present. If you are unsure of what to do, always ask if you are free to leave. If you are free to leave, then you are not under arrest and the Fifth Amendment right to remain silent does not protect you and you should leave immediately.

Am I Protected if I’m Under Interrogation or Investigation?

Detectives and law enforcement officers only interrogate suspects in an attempt to obtain a self-incriminating response. If you are under interrogation, ask if you are free to leave. If you are, you are not protected by the Fifth Amendment right to remain silent and should leave immediately and speak with a defense attorney. If you are not free to leave, that means that you are in custody and are protected by Miranda rights during the investigation.

To invoke your legal right to remain silent, you must actually say the words “I am exercising my right to remain silent and would like to speak with a lawyer immediately”.

If a Police Officer Puts Me in Handcuffs, Am I in Custody?

Not necessarily. As before, a police officer may use this tactic to scare a suspect and coerce them to give a self-incriminating statement because they think they are in custody. However, always ask if you are free to go. If you are free to go and not under arrest, leave immediately and speak with a defense attorney because the right to remain silent does not protect you.

Involuntary Statements

Whether or not you were Mirandized, your statements may still be involuntary if they were coerced in any way by law enforcement. In determining if your statement was voluntary, courts consider many factors, including but not limited to:

  • Where did the interrogation take place? A police station is a more intimidating location than on the street or in your home.
  • How long did the officers question you? Long and tedious interrogations lasting several hours indicate the statement was involuntary.
  • Whether the officers continued questioning after you exercised your right to remain silent.
  • Did you volunteer the statement without any provocation from law enforcement?
  • Your age, health and experience with the criminal justice system.

File a Motion to Suppress Statements and Evidence, Get Case Dismissed

The Texas Code of Criminal Procedure Article 38.22 § 3(a)(2) allows your attorney to file a motion to suppress your statements on the grounds that you were not informed of your rights and/or that your statements were involuntary.  If the motion is granted it may or may not result in the dismissal of the case. It only means that your statements:

  • May not be used against you at trial.
  • Evidence discovered that was found only because of your involuntary statements or the failure of law enforcement to Mirandize you may not be used against you.
  • If your case goes to trial, the jury may not be told that you exercised your right to remain silent.

For example, consider the situation where the court determines your confession to a crime was involuntary. You also told law enforcement where to find a weapon you used in committing the crime. Other than your statement and the weapon, there is no other evidence against you. The case will be dismissed because the prosecution now has no evidence.

On the other hand, if the court determines your confession to a crime was involuntary, but officers independently found a weapon with your fingerprints on it, your case may proceed to trial. But, at trial, prosecutors cannot present your statement to the jury. They can enter the gun into evidence since your statement is not what led them to the weapon.

Are There Any Situations When Miranda Protection is Not Guaranteed or Exceptions to Miranda Rights?

Yes. There are three situations where Miranda rights are not guaranteed: when refusing to speak causes a threat to public safety, standard booking questions like your name and insurance called standard booking questions, and when the person is already incarcerated and acting as a jailhouse informant.

If I am a prison inmate, is law enforcement required to Mirandize me prior to being questioned about a case unrelated to my incarceration?

Unfortunately, Miranda warnings are not required in that type of situation. In 2012, the United States Supreme Court specifically held that whether or not Miranda warnings are required turns on whether the person interrogated was in custody or free to leave. If prisoners are in a conference room, and told they are free to go back to their prison cell, there is no custodial interrogation and the statements will be admissible.

Remember, you still have all the constitutional rights afforded you, including the right to remain silent. The Supreme Court ruling only means officers do not have to inform you of your rights.

Does a probation officer have to read you your rights before they can arrest you?

It depends on the nature of the questioning. If you are being questioned, and you are not free to leave, Miranda warnings are not required. If you are actually placed under arrest, then Miranda warnings are required.

Were You Arrested After Speaking with Police and Never Read Your Rights?

Call The Hampton Law Firm today to speak with a Miranda Rights lawyer. Our team of criminal defense attorneys can aggressively push the Tarrant County judge presiding over your case to drop the charges against you if you were coerced into making a statement without being mirandized.