What If I'm Not Read My Miranda Rights?

Use these links to jump to different sections:

• When Should You Be Read Your Miranda Rights?
• What if I’m Not Read My Rights?
• You Have the Right Against Self-Incrimination

You’ve heard it in just about every crime show or movie you’ve ever watched: “You have the right to remain silent. Anything you say can and will be used against you in a court of law…” and so on and so forth. Those words—your Miranda rights—were established in the 1966 U.S. Supreme Court decision Miranda v. Arizona. They’re constitutional rights (specifically, Fifth Amendment rights), there to protect you in case you’re in custody and being questioned by law enforcement officers.

Mark Zimmerman, a criminal defense attorney at Zimmerman and Zimmerman in Sarasota, Florida, thinks that TV has made Miranda rights less potent.

“It makes people think that they always have a right to be told that—and they don’t,” he says. “The other problem is, when you say the same words over so often, they start to sound like, ‘Blah blah blah blah blah.’ People don’t realize those words are not just a song or rhyme the police have to recite to you to check a box; they’re actually giving you tremendously important information that you need to listen to and consider very carefully.”

When Should You Be Read Your Miranda Rights?

Zimmerman is correct—police do not always have to read you your Miranda rights. Instead, the warning only applies in situations wherein there’s custodial interrogation; it only applies if the person is in police custody and is being questioned.

“Whether someone is in custody is itself an entire body of law,” Zimmerman says. “But, obviously, if you’re in handcuffs or jail, you’re in custody. Anytime a police officer tells you not to move, you’re in custody. If a reasonable person would believe they are not free to leave, then they are in custody.”

As for police questioning, you don’t need to be interrogated down at a police station or anything dramatic like that; law enforcement needs to merely be asking you questions.

What if I’m Not Read My Rights?

“You can be in custody, and they can ask you questions, and they cannot read you your Miranda rights—there’s nothing illegal about that,” says Zimmerman. “The problem for the police is that they can’t use the answers to those questions against you in court.”

If you’re not in custody, and a police officer walks up to you and begins asking you questions, you do not need to answer questions. In this scenario, Zimmerman says you don’t need the extra protection Miranda rights offer; you can just walk away.

“Now, there’s the reality of life, which is that people perceive that police officers have certain authority and therefore they are legally obligated to do things like answer their questions,” he adds. “In fact, people are wrong about that; they don’t have to answer those questions.”

You Have the Right Against Self-Incrimination

Zimmerman says the Miranda warning is about making sure you know your rights under the Fifth Amendment. “The police aren’t obligated to tell you your rights all the time,” he says. “However, under certain circumstances—because their power and the perception of their power is so tremendous when you’re in custody—the Supreme Court decided that the police have to go an extra step, and let you know, ‘Hey, you’ve got these rights, and you don’t actually have to talk to us because anything you tell us can be used against you.’

“I always tell my clients, ‘If someone tells you that you have the right to do something, you should be listening very carefully, because that’s a good thing,’” Zimmerman adds. “So when someone says to you—especially at a time of great stress, like when you’re in jail—that you have the right to remain silent, then, by god: Remain silent!”

If you or someone you know is in need of legal advice from an experienced criminal defense lawyer, make sure you get one before you speak with the police. Zimmerman says talking will not benefit you until after you have one. For more information on this area of law, see our overview of criminal defense.