Are My Miranda Rights Dead?

A question we hear all the time is: The police didn’t read me my rights when they arrested me, doesn’t that mean I get my case dismissed?

The answer is no. Unlike what we see on TV, simply being arrested does not mean that an officer must read you Miranda warnings. Miranda warnings don’t directly affect the legality of an arrest, but deal primarily with admissibility of statements and evidence discovered as a result of those statements. These warnings come from the now famous case of Miranda v. Arizona. In that case, the Supreme Court held that if law enforcement wants to interrogate someone in custody, their statements may only be used in court if the suspect is first informed of their rights, and they knowingly and voluntarily waive those rights.

As with many areas of our lives, when it comes to statements, our constitutional protections have been eroded. For example: With the right to remain silent. We now know simply remaining silent is not enough to trigger the protection of the 5th Amendment. In 2010, the Supreme Court gave us one of the most frustrating decisions when it comes to this area of law, Berghuis v. Thompkins. In that case, the suspect, Mr. Thompkins, was given a Miranda warning before being questioned, but did not explicitly invoke or waive his right to remain silent during the three hour mostly silent interrogation.

The court held that the mere act of remaining silent was insufficient to imply that Mr. Thompkins invoked his right to remain silent, and any answer that he gave, even after a lengthy silence, could be implied as a waiver of his 5th Amendment right. What does this mean for you? You must positively assert your 5th Amendment right to have these protections. So how do you invoke your 5th Amendment rights?

You must say, “I assert my right to remain silent. I assert my right to counsel, and I wish to terminate this interview.” If you don’t, there’s no limit on how long the government can question you. This area of law is fraught with peril and gets a lot of good folks in trouble, even if they’re innocent. Your Miranda rights aren’t dead, but they’re on life support. To protect yourself, invoke your right to remain silent, and then exercise that right.

First Aid for Gunshot Wounds 2A Institute

Tell the police you want to terminate any questioning before speaking with your attorney, and don’t waive your rights. If you have any questions about Miranda warnings, call U.S. LawShield and ask to speak to an independent program attorney.

First Aid for Gunshot Wounds 2A Institute

Comment section

8 comments on “Are My Miranda Rights Dead?

  1. just one more case of the federal government revolking your rights so they can protect you. yea, right.

  2. Mr. Hayes’ statements should be taught in school, or in every Carry License Class, at the very LEAST. This is, definitely, different than TV has taught us, ALL our lives. (I’m 69.) Thanks for setting me straight. There are, probably, a few million people who are cursed with my ignorance, prior to this video.

  3. It seems you have a right but also a responsibility as does law enforcement.

    Is law enforcement supposed to read your mind? No rights are absolute and requiring someone invoke or CLAIM them to exercise them is reasonable.

    I see no erosion of rights here.

  4. D.A.’s are paid to win cases, even as a public defender though many work to get you to plea out, so they will do anything they can, bending and stretching the law as much as possible, to convict you. I was told long before I became a Tx Law Shield member, to verbally and specifically invoke my 3rd, 4th, and 5th amendment rights the moment I was arrested, and to say nothing after that. Since then, I was a County Detention officer, and upon leaving I was told to ensure that was known, so I would not be housed in the general population, but nothing more.

  5. So what you are saying is that if I invoke my 4th, 5th, and 6th amendment rights like you suggest on the back of the membership card the police can still question me. I still have to assert my right to keep silent???

  6. Question: AFTER asserting and invoking my 5th Amendment rights, is that right considered waived if ANYthing is said, such as a request for a drink of water?

  7. Allway invoke your right…when you are stopped by corporate agents

  8. As a retired police detective i can say there is much misinformation here. The DAs job is to get justice (perception is everything) for the public in general. Their ethical obligation (and personal belief) is to not prosecute the innocent. The defense attorneys job is to defeat the system if possible to benefit his client, guilty or innocent. A cop responding to a shooting, or anything, wants the bad guy held accountable, and the good guy inconvenienced add little as possible. Not always obvious. And victims lie as well as suspects. If i come to the scene i need to more than guess what happened. A shooter should say “i feared for my life and i shot him as he……..” you don’t have to go into details. But many innocent shooters are questioned until that issue can be determined. Cops DONT want to charge the innocent. If you say nothing, the cops have to guess. Or take the word of a lying witness/victim. Staying silent CAN be your enemy. Dont be chatty. Its not as simple as these articles portend.

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