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“You have the right to remain silent…”

Everyone has heard Miranda before on TV or in a movie, if not in person.  Some of you can probably recite the rights.  But when do the police need to read Miranda Rights to someone?

There has been quite a bit of news recently about whether to advise Boston Bombing suspect Dzhokhar Tsarnaev of his rights, and it is a great opportunity to discuss the implications of Miranda Rights.  There are many public policy decisions and issues for Dzhokhar that don’t pertain to the average defendant, but it is a good example.  So, what happens if the police do not advise you of your rights?

Miranda rights are required before any custodial interrogation.  What is a custodial interrogation?  First, it is one where the defendant is in custody.  Many days can be spent in law school debating what “in custody” means, but as a general rule, if you are in handcuffs or in the back of a squad car, you are in custody.  What constitutes an interrogation?  If the officer asks you any questions, it is considered an interrogation (though there are exceptions for basic questions like “what is your name”).

So what happens if you are questioned after you are arrested, but no one reads you your rights? Your case does not automatically get dismissed.  The FBI and Federal Prosecutors would not have asked Dzhokhar questions without reading him his rights if it meant the criminal case would get thrown out.  Prosecutors likely think they have enough evidence to convict him, even if they can’t use what he says during the interrogation.

If you are questioned without being read your rights, your responses to those questions probably can’t be used at trial.  At Mahlum Law Office, we would file a Motion to Suppress and argue to the judge that your rights were violated, and that anything you said during that interrogation shouldn’t be used against you.  If the Judge ruled in our favor, the DA couldn’t use any of the suppressed statements against you.  At that point, whether the DA chose to proceed or dismiss the case would depend on the strength of the other evidence.  If the police witnessed the crime, odds are the DA will still prosecute the charges.  However, if you confessed during a custodial interrogation, and there isn’t any other evidence, it might just be your lucky day.

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