Pre-Arrest Questioning

The Miranda Warning, which protects your rights regarding police interrogation, does not need to be given to you if you are not under arrest. If you are not arrested for a crime, you are not going to go to trial for a crime, so there is no need to give you a Miranda Warning so that what you say can be used against you at trial.

This is why on popular television shows the police are sometimes shown speaking to a person for some time before they read them their Miranda Rights. They have reached a point where they feel the suspect is beginning to incriminate himself or herself, and they are protecting the suspect’s rights and protecting their own ability to use the person’s testimony at trial by reading the Miranda Warning. Television gets these things right sometimes!

You will not be arrested for politely declining to answer questions, but a situation that requires police intervention is unlikely to be simplistic enough for that response. Police could arrest you for many other reasons, including ‘probable cause,’ so always be polite and do not aggravate the situation.

If you have been Mirandized and you waive your rights, meaning you wish to speak to police freely without an attorney present, you can change your mind at any time and ‘plead the fifth,’ meaning you no longer wish to answer questions, or that you have changed your mind and wish to have an attorney present after all.

If you have concerns that you may incriminate yourself by speaking freely to a police officer, by all means request that your attorney be present.

Post-Arrest Questioning

If you are detained by police and not allowed to leave freely, police must read you the Miranda Warning so that you fully understand your rights regarding being questioned. If the police do not intend to use those answers against you at a trial, they do not need to ‘Mirandize’ you.

Any defense attorney would want their potential client to take advantage of one of the most important rights in the Miranda Warning: the right to remain silent. It is certainly more difficult to defend a client who has freely admitted guilt to a crime or given such information as to be easily incriminated.

The Miranda Warning, in protecting an individual’s Fifth Amendment rights not to self-incriminate, allows you to decline to answer questions unless you have an attorney present or until you have consulted with your attorney.

Evidence that you might unwittingly give before you have been Mirandized should not technically be used against you at a trial, but the law is complex and intricate and you should not count on evidence being dismissed if you were not Mirandized and you gave the information freely.

If you have been Mirandized and you waive your rights, meaning you wish to speak to police freely without an attorney present, you can change your mind at any time and ‘plead the fifth,’ meaning you no longer wish to answer questions, or that you have changed your mind and wish to have an attorney present after all.

If the police unreasonably and illegally find evidence against you and they have violated your rights by not reading you the Miranda Warning in a timely fashion, there is a rule called ‘fruit of the poisonous tree’ that makes such evidence inadmissible in a court of law. However, police may be able to prove that they would have found such evidence without your cooperation, and therefore they have the right to use that evidence at a trial. Be cautious about relying on any such intricate defenses. Choose the ‘right to remain silent’ option as your best choice.