Miranda rights, also referred to as “Miranda warnings,” are warnings law enforcement officers must give to suspects before they can question the alleged wrongdoers following an arrest. An example warning is, “you have the right to remain silent.” Suspects can waive their Miranda rights and decide to talk to a police officer. However, it is typically not advisable for a person to waive his/her rights and answer questions without a lawyer.
The three most important things for people to know about waiving their Miranda rights are:
- a person is not obligated to waive Miranda rights and can freely exercise them,
- a suspect can engage in conduct or provide statements that imply a waiver, and
- a waiver is not permanent, people can waive their rights but then invoke them at a later time.
Miranda rights arise from the protection against self-incrimination that is embodied in the Fifth Amendment right in the United States Constitution. They apply in all criminal cases, including those involving misdemeanor and felony offenses.
Do suspects have to waive their Miranda rights?
No. When police read people their Miranda rights, suspects are free to invoke them.
Note that no specific words are required in order for a Miranda warning to be valid.1 However, typical warnings given by an arresting officer in a California criminal case read as follows:
- You have the right to remain silent,
- Anything you say may be used against you in court,
- You have the right to talk to a lawyer and have the attorney present with you while you are being questioned, and
- If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning if you wish.2
Once an arrestee has been mirandized, that person can exercise his/her rights.
Note that, under California criminal law, no special words are required in order for a person to successfully invoke his/her Miranda rights. But they must be stated clearly and affirmatively. For instance, someone might say, “I am invoking my right to remain silent” or “I want to speak to a lawyer.” Simply remaining silent is not enough.3
Once suspects exercise their rights, police must:
- adhere to them and their fifth amendment right, and
- cease with police questioning or any police interrogation and provide the suspect with a criminal defense attorney.
Can a waiver of Miranda rights be implied?
Yes. Valid waivers may be either “express” or “implied.”
An express waiver involves some type of statement. Consider, for example, the scenario where a suspect is taken into police custody and officers provide that person with Miranda warnings. If an officer then asks, “do you still wish to speak with us” and the suspect answers “yes,” this is an express waiver.
The police will then usually ask the suspect to sign a written waiver acknowledging that he/she is waiving rights. But it is not necessary and a refusal to sign an offered acknowledgment form does not mean that rights were not waived.4
An implied waiver is one that is inferred from a defendant’s behavior. Behavior can include a suspect’s statements to the police/police station – either before or after a Miranda warning was read.5 The statement will be considered an implied waiver of rights as long as it is “intelligent,” “knowing,” and “voluntary.”6
Is a waiver permanent?
No. Under the California criminal justice system, a person can waive his/her Miranda rights but then invoke them at a later date. The rights will then apply on a going-forward basis.7
This means that even if a suspect has waived Miranda rights and started talking, he/she can change his/her mind and invoke them. This is true even if he/she has already answered some of an officer’s questions.
Consider, for example, the scenario where John is arrested after police suspect him of felony hit and run. The police read John his Miranda rights and John clearly waives them. When the police begin to question him in a custodial interrogation, John grows nervous that he is providing incriminating statements. Here, John can tell authorities that he would like to invoke his right to remain silent and his right to have a lawyer present. The police must then stop their questioning and uphold John’s constitutional rights.
What is the remedy for a Miranda right violation?
If police do not read a person his/her Miranda rights, or fail to protect them if the party invokes them, then a defense attorney can file a “motion to suppress evidence.”
If the judge grants the motion, then under the exclusionary rule, any incriminating statements the person made to authorities can be held inadmissible in a court of law.8
A ruling that denies the admissibility of evidence can work to reduce any charges filed or have them dropped in their entirety.
Further, a Miranda right violation could lead to charges of police coercion by members of any police departments involved.
Note Miranda rights take their name from a real U.S. Supreme Court case, “Miranda v. Arizona.”
In Miranda, the Supreme Court ruled that an arrestee must be advised of his or her constitutional rights whenever the following two conditions are met:
- the suspect is in custody and not free to leave, and
- the police wish to conduct a “custodial” (post-arrest) interrogation.9
If the suspect is free to leave or is not being interrogated, the police do not have to give a warning.
Legal References:
- Florida v. Powell (2010) 559 US 50.
- Miranda v. Arizona (1966) 384 U.S. 436.
- Berghuis v. Thompkins, 560 U.S. 370 (2010).
- See same.
- See same.
- See same See also Miranda v. Arizona (1966) 384 U.S. 436; and, Moran v. Burbine (1986) 475 US 412.
- Berghuis v. Thompkins, 560 U.S. 370 (2010).
- For a discussion of the exclusionary rule, see Davis v. United States (2011) 598 F. 3d 1259.
- Miranda v. Arizona (1966) 384 U.S. 436.
