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The How and When of Miranda Rights


Forget everything you know about the Miranda rights from movies and TV shows. A 2010 Supreme Court case, Berghuis v. Thompson, gave police officers much more latitude in this area. As a result, the Miranda rights (you have the right to remain silent, etc.) are no longer the same.

Before 2010, the Miranda rights were a cornerstone of criminal procedure. Judges often threw cases out of court if police officers did not properly and promptly Mirandize the defendant. Now, no one is sure about these things. But one thing is certain. Without an assertive Port St. Lucie criminal attorney by your side, your rights might get trampled on.

Right to Remain Silent

Most people know they have the right to remain silent when police officers question them. But most people do not know how broad this right is, how hard police officers try to get around it, or what they must do to preserve their rights.

The Fifth Amendment does not just include the right to keep one’s mouth closed. It also protects the right to remain silent with the rest of your body. Defendants need not appear in lineups, pose for pictures, or perform roadside field sobriety tests. All these acts simply hand evidence to prosecutors. And, the state does not need any help to obtain a conviction.

Most prosecutors are only interested in convictions, and most police officers only want to collect evidence against suspects. Officers are usually not interested in “justice” or “fairness.” So, in order to convince suspects to waiver their Miranda rights and talk to investigators, they often cajole, coerce, bribe, or threaten them.

In most cases, the worst thing officers can do is arrest you. And, if they are interrogating you, either in the street or at the police station, an arrest is probably inevitable. So, stand firm and call your lawyer. More on that below.

Under Berghuis, defendants must expressly assert their rights. Otherwise, police officers can assume they waived them, and therefore there is no need to inform them of their rights. Express assertions include phrases like “I choose to remain silent” and “I’m asserting my Constitutional rights.” Simply not saying anything is insufficient.

Right to an Attorney

The Sixth Amendment gives defendants the right to counsel. But not just any attorney will do. The attorney must be qualified. That means the attorney must have a reasonably clean disciplinary history, be actively licensed at the time, and have some expertise in the area of criminal defense.

All that being said, it is rather difficult to overturn convictions based on ineffective assistance of counsel. Florida generally employs the glass mirror test. The appeals court holds a metaphorical mirror under the lawyer’s nose, and if it fogs up, the defendant probably had effective assistance of counsel.

When Does Miranda Apply?

Under the original case from the 1960s, police officers must administer the Miranda rights when custodial interrogation begins. Let’s look at these elements individually:

  • Custody means the defendant does not feel free to leave. Typically, courts use the moment officers handcuff defendants as the dividing line. Arguably, however, many people do not feel free to leave when they see flashing lights in their rear view mirrors.
  • Interrogation means more than asking questions. In this context, this word means anything designed to extract information. Veteran investigators know how to ask questions without asking questions. That’s why it’s so important to remain silent from the beginning.

The right to remain silent is an immediate right. The right to an attorney does not kick in until the prosecution reaches a “critical phase.” Courts typically interpret this phrase as the moment when authorities file official charges.

Reach Out to an Aggressive Lawyer

The Miranda rights have changed. For a free consultation with an experienced criminal defense attorney in Port St. Lucie, contact Eighmie Law Firm, P.A. Convenient payment plans are available.





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