We frequently receive calls from potential new clients who want confirmation that their case is going to be dismissed. Obviously, everyone wants to beat a criminal charge and the stress or fear of potential jail time to go away. While immediate dismissals do happen in approximately 1% of cases, the reason is usually not what you think—and it is almost never due to failed Miranda warnings.
One of the most common assertions from a potential client is that the case is a “slam dunk” because the cop didn’t Mirandize the person. Unfortunately, we have to break it to many folks that it is far from a slam dunk. In fact, despite what people see on TV, not being mirandized can have zero impact on a case. The reason for this is timing.
So, when do Miranda warnings apply?
If an officer is in the process of investigating a crime, there is no reason for the Miranda warnings. Miranda only comes into play when a defendant is arrested.
What are the required warnings? First, you have the right to remain silent. Second, you have the right to consult with an attorney before or during questioning and to have one appointed if you can’t afford one. (You don’t have the right to an attorney at the time of arrest…just prior to being questioned.) Third, you have the right to have an attorney present during the questioning.
As noted, these rights come into play when the officer realizes an investigation has produced enough facts to meet probable cause and warrant an arrest of a specific person for the crime. If that person had been talking before enough facts have been gathered to support probable cause, the officer was not required to give Miranda warnings.
What is the remedy if the officer fails to read Miranda rights?
If the officer arrests you but does not ask you any questions and then fails to Mirandize you, that is also not reason for a dismissal. The remedy for failing to Mirandize or violating the Miranda rule is simply to suppress the statements made after the Miranda warnings should have been provided. So, if you said nothing after Miranda warnings should have been read, there is no remedy. The case proceeds as normal.
Additionally, if you were properly Mirandized but you were not clear that you wanted to consult with a lawyer, any statements made following the Miranda warnings will likely not be suppressed. For example, people often want to “hedge their bets” and see if they’re friendly to law enforcement and share some facts, it might convince the officer to release them. This is not a good strategy but one that many people use. The defendant continues talking after Miranda warnings were read and throws out statements like “maybe I should talk to a lawyer” or “how can this be happening when I wasn’t the one with the _____.” The defendant continues to talk and the officer will happily let you. S/he is not required to keep alerting you to your rights—once is enough.
How do you properly invoke Miranda rights?
To properly assert your rights, you must unequivocally state, “I want a lawyer before I say anything further.” YOU must be clear. It is not the burden of the officer to clarify. If you talk, they will write it down. And, even if you claimed “I want a lawyer” but kept talking to the officer, you have waived the right.
So, if you were not Mirandized, it might mean some statements are suppressed and it might also mean nothing for your case. Going forward, if you are ever arrested, realize that you must assert your interest in those rights by claiming you want to speak with a lawyer AND stop talking after you make that assertion.
Everything in this blog is basic and simplified. There is a great deal of case law reviewing Miranda and how those rights are applied. There is no “one size” fit for Miranda so it is pointless to ask friends or do countless internet searches. If you think you have a Miranda issue, the only way to know your remedy or how will impact your case is to contact an experienced criminal defense attorney where you were charged with a crime who can review your discovery. Attorneys are licensed by each individual state and can only provide advise in the state where they are licensed. If you were charged with a misdemeanor in Kitsap County or one of the surrounding cities, please reach out to one of our attorneys if you have a Miranda concern.