“You have the right to remain silent.”

“Anything you say can be used against you in court.” “You have the right to talk to a lawyer for advice before questioning.” “You have the right to have a lawyer with you during questioning.” “If you cannot afford a lawyer, one will be appointed for you before any questioning, if you wish.” “If you decide to answer questions now without a lawyer present, you have the right to stop questioning at any time.” Miranda Warnings, also referred to as Miranda Rights, protect individuals from self-incrimination and uphold the Fifth Amendment.

This protection hasn’t always been available. The Miranda Warnings stem from the now infamous case, Miranda v. Arizona.

The history of the Miranda case began in 1963 when Ernesto Miranda, an Arizona man, was arrested and questioned about his involvement with an alleged kidnapping and rape. At the police station, police interrogated Miranda for over two hours, but never informed him of his Fifth Amendment rights to remain silent or have an attorney present during the interrogation. At the conclusion, police obtained an oral and written confession from Miranda. Subsequently, Miranda was convicted at trial, but appealed his case all the way to the United States Supreme Court.

The issue addressed by the Court was whether the Fifth Amendment right against self-incrimination is violated when an individual is taken into custodial interrogation without being advised of their constitutional rights to remain silent or have counsel present. In a 5-4 decision, which involved this case and several others, the Supreme Court held that once taken into custody, for the purposes of interrogation, the individual’s Fifth Amendment privilege against self-incrimination is compromised unless law enforcement informs the individual of their constitutional right to remain silent and to have counsel present. The Court further stated that certain procedural safeguards are required to protect this privilege.

These procedural safeguards became what we know today as the Miranda Warnings.

Warnings Aren’t Always a Right

Due to the coercive nature of custodial police interrogations, the Supreme Court further held that evidence obtained as a result of the interrogation could only be used against the individual at trial if the prosecution demonstrates that proper warnings were given, and the suspect knowingly and voluntarily waived those rights. Additionally, it’s a common myth that if the police don’t read you your rights, they can’t arrest you. While this isn’t true, the courts have considerably chipped away at these constitutional protections.

Since Miranda, many cases have come and gone before the Supreme Court that have reshaped how Miranda applies today. Here are some of the most important rulings. The first is Duckworth v. Eagan, in which the Court held, Miranda Warnings need not be verbatim. Police can use different versions only if the warnings reasonably convey the suspect their rights, as required by Miranda. Next, Pennsylvania v. Muniz. Here, the Court held that, Miranda doesn’t apply to routine booking questions even where the booking process is taped and subsequently used as evidence. Next, is Michigan v. Mosley, in which the Court held that, once a suspect invokes their rights to remain silent, law enforcement may later interrogate the suspect regarding a separate, unrelated crime as long as a reasonable amount of time has passed and new warnings are given.

Another case, New York v. Quarles, states that, “When officers are presented with a public safety emergency, such as finding a missing weapon, they can conduct a custodial interrogation without first giving the suspect their Miranda Warnings.” Simply stated, if the purpose of the interrogation isn’t to elicit a confession, but for a public safety purpose, the safeguards of Miranda are not required. Finally, Berghuis v. Thompkins, which said that, “The mere act of remaining silent isn’t enough to invoke a suspect’s right to remain silent during an interrogation.” If you simply remain silent, the police could continue to question you indefinitely. The suspect must unambiguously state that they’re invoking their right to remain silent and any voluntary reply, even after a lengthy period of silence, can be construed as a waiver.

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.

Save Yourself From Self-Incrimination

What do these cases mean for you? To protect yourself from self-incrimination, you must very intently invoke your rights to remain silent and to have counsel present, and then exercise those rights. Tell the police officer, “I assert my right to remain silent. I assert my right to counsel, and I wish to terminate this interview.”

Do not waive your rights. Do not say anything to law enforcement until your attorney arrives and only if your attorney tells you to do so. This area of the law is complex, and if not followed directly, can place innocent people behind bars. Therefore, if you ever find yourself in trouble with the law, you need to speak to an attorney immediately.

If you have any questions about Miranda Rights, call U.S. LawShield and ask to speak with an Independent Program Attorney.