They did not read me my rights

Published 3:40 pm Monday, December 28, 2020

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By Jason Swindle
Senior partner with Swindle Law Group, P.C.

One of the most common questions I hear from clients, potential clients, friends and others in the community is, “Since they did not read a person their rights, should a criminal case be dismissed?”  The question is perfectly reasonable to ask.  But, the answer is almost always “no.”

This widespread misconception of cases being dismissed because of an officer’s failure to read an arrestee his rights has been firmly entrenched into society by television for years. For example, a crime movie portrays a man getting arrested. The officer says, “You are under arrest.  You have the right to remain silent.  Everything you say can and will be used against you in a court of law.”   

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Since most people have seen hundreds of arrests like this on television, there is a widespread belief that when a person gets arrested, if the officer does not read a person “their rights,” the case will be dismissed. 

This may happen in Hollywood. But, 99 percent of the time, it does not happen in the real world. 

The reading of these “rights,” known as the Miranda Warning is required in only one scenario. It must be read when a person is currently under arrest, is in the custody of law enforcement (usually at the jail), and an officer seeks to question the arrestee about the alleged crime. The Miranda Warning gets its name from Miranda v. Arizona, a famous U.S. Supreme Court case from 1966. In this case, the Supreme Court ruled that when the police arrest a person and want to interrogate him, they have to remind him that he has these two rights:

1. The right to remain silent (the right against self-incrimination) means that law enforcement cannot force a person to admit that they committed a crime or make any other incriminating statements; and 

2. The right to be represented by an attorney.  If a person says that they want a lawyer during police interrogation, they get one.

While many officers read Miranda to an arrestee, there is actually no requirement nor need for these rights to be read under most circumstances.

For example, it is extremely rare in DUI cases for Miranda to be read to a person because after the arrest, the vast majority of evidence, like field sobriety tests, has already been collected.  There is no need for law enforcement to conduct any questioning.

They have already obtained the information that they believe is needed to prosecute the case. 

While the Miranda Warning is not a necessary, routine part of an arrest, it can become very important in many felony cases when someone confesses to a crime or otherwise incriminates themselves while being questioned in custody. 

A valid confession creates a daunting challenge for the criminal defense attorney. 

If the police do not give an arrestee a proper Miranda Warning before a custodial interrogation, there are consequences that favor the arrestee.

If a person is charged with a crime and part of the evidence the District Attorney wants to use to convict him is his own supposed confession, then it is possible for the defense attorney to file a “motion to suppress” those incriminating statements.

If, under all the circumstances of the custodial interrogation, the defendant did not knowingly, intelligently, and voluntarily waive his rights, the judge can grant the motion and the confession cannot be used in the defendant’s trial. In a case where a defendant’s alleged confession makes up the bulk of the evidence, this can very well mean a reduction in the charges or a dismissal. 

Based on questions that I ask potential jurors, a large percentage of Americans watch crime shows like Law and Order, CSI, and Forensic Files.

The next time that you see an arrest while watching, ask yourself whether the reading of the arrestee’s “rights” has any impact on the case.