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When, how Miranda comes into play: some considerations

On Behalf of | Mar 7, 2016 | Criminal Law

You have the right to remain silent. If you choose to forgo that right, anything you say can and will … .

We suspect that virtually all our blog readers across Colorado are familiar with those words or some variant of them, especially if they’ve spent even a modicum of time watching television over the years.

They are part and parcel of the so-called Miranda rights, of course, and fundamentally important to considerations surrounding an individual’s detention and questioning by the police.

That partial clarity regarding Miranda can be just as easily matched by confusion attaching to precisely what is encompassed by those rights, however, and when they take effect.

“What most Americans don’t know,” states an article devoted to discussion of Miranda and its seminal importance in American law, “is exactly what their Miranda rights are and when they apply.”

And it doesn’t immediately help a great deal to note that, as tribunals ranging all the way up to the U.S. Supreme have intoned, a Miranda warning must be given by police to an individual the moment that he or she is regarded as being in custody.

And here is why: Custody itself can be somewhat murky. Is a formal arrest central to the concept? How about detention with no mention of an arrest? How about an individual’s strong feeling that police action is akin to a detention, even though no statements have been made telling that person that he or she is not free to leave?

And a tandem prong relating to Miranda, namely, that the warning must be given whenever a person is being interrogated, can be equally fuzzy.

For, again, what exactly comprises an interrogation? How many questions must be asked by a police officer, and of what nature, before Miranda becomes applicable?

Miranda makes several references to an attorney. The aforementioned article states that any person being stopped and questioned by cops in a manner that seems directed toward criminal involvement or complicity might reasonably want to stop the conversation without delay and invoke the right to consult with defense counsel.

Because, again, anything divulged to a police officer can be cited as evidence in a court of law.