When To Invoke Miranda Rights

I’ve been a practicing attorney for 20 years with an emphasis in criminal defense and civil litigation. Today I want to talk with you about when and why you invoke your Miranda rights. You’ve probably all heard about Miranda rights, and earlier I discussed with you what has to occur in order for your Miranda rights to attach.  And what that means is when does Miranda become constitutionally required. And to briefly review that it means:

  1. you have to be in custody or arrest-like restraints and you feel that you cannot leave
  2. you have to be questioned or interrogated. Custody and Interrogation. In other words, if you are arrested and they don’t ask you any questions, they don’t have to give you your Miranda rights. Those two things have to be in place. 


Why you should invoke Miranda Rights

Now, why would you invoke your Miranda rights? You’re saying to yourself, "hey, if I’m innocent, I don’t have anything to hide – I want to tell them. I’m going to say I wasn’t at the scene of the robbery", or, "I couldn’t have been at the specific location", or "I didn’t embezzle the money", or "I wasn’t involved in this drug transaction." Here’s why. Because even if they record that interrogation completely through video or audio or otherwise, the questions they ask you are not geared toward determining an objective set of circumstances or facts. They’re there to set you up for cross-examination for trial. 

Here’s what happens. If you make a statement, for example, let’s say it’s a drug transaction-- and they say to you, "on January 13, 2012, were you at 4900 Main?" And you say, "No, that’s impossible, I remember I was at my cousin Fred’s house and I have an alibi on that day and you can check." Let’s say you’re wrong. Then if you testify, your statement can come into evidence. Which means they can impeach you. So in other words, when you testify and say, "hey, I didn’t do anything", they’re going to be able to use your statement that you were at your cousin Fred’s house against you. So again, a good example of why you would NOT want to give a statement and why you WOULD want to invoke your Miranda rights. 

How to invoke Miranda Rights

Well, how do you do that? The simplest way is to say nothing. The best way is to ask for your attorney. And the way you do that is to politely and directly indicate that you are requesting your right to counsel and that you have no statements to make. That’s the thing to do. Let me repeat it for you: I’m requesting my right to counsel, I have no statements to make, and I’m invoking my Miranda rights. That’s what you want to say. Resist the temptation that all of us may have to want to be cooperative with police who are investigating it and give them information, because it may be to your detriment. 

And that’s why we invoke the Miranda rights!


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