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When Do I Have ‘The Right To Remain Silent?’


Beginning in 1966, the Supreme Court required police officers to inform suspects of basic Constitutional rights before questioning them. In many movies and TV shows, suspects are “Mirandized” when they are arrested. Officers do this by rushing through a series of statements while the suspects are placed into squad cars. In reality, the law requires much more.

The Case

Briefly, Phoenix Police Department officers arrested Ernesto Miranda on suspicion of kidnapping and rape. After a two-hour interrogation, Mr. Miranda signed a typed confession that was later instrumental in his conviction.

A sharply-divided Supreme Court later ruled that the confession was inadmissible, since the police never informed Mr. Miranda of his Fifth Amendment right against self-incrimination and his Sixth Amendment right to counsel. In his majority opinion, Chief Justice Earl Warren wrote that officers must inform defendants of these rights and that defendants must expressly waive them prior to questioning. At the time, both the FBI and the Uniform Code of Military Justice already had similar requirements in place.

As a footnote, Mr. Miranda was retried for the crime without the confession, convicted, and sentenced to prison. He was killed in a bar fight in 1976.

The Miranda Rights

There is no precise form for the Miranda warnings, as the Supreme Court only required notice about constitutional rights. Typical warnings include the right to:

  • Remain Silent: Officers usually add that defendants have the right to not answer questions; they must also add that any information obtained during such interrogation is admissible at trial.
  • Have Representation: Criminal defendants have an absolute right to counsel, and if the court declares them to be indigent, they are entitled to court-appointed counsel or a public defender.

Most law enforcement agencies have printed warning cards in several different languages.


Courts have consistently held that the rights guaranteed in Miranda v. Arizona apply during custodial interrogation. Each of these terms has a very specific, and very narrow, meaning.

In the ordinary sense of the word in this context, “custody” usually refers to any restraint of movement that takes away a person’s freedom to leave. For example, drivers are arguably placed “in custody” when they see flashing police car lights in their rearview mirrors, because at that point, they are not free to leave. But in the Miranda context, “custody” means formal arrest. Likewise, “interrogation” means explicit questions that are likely to produce incriminating responses.

Recent Developments

In 2010, the Supreme Court decided Berghuis v. Thompkins, and it is still the most recent Supreme Court case in this area. Just as in the original Miranda case, the Justices were sharply divided. Five Justices, led by Anthony Kennedy, ruled that suspects must unequivocally invoke their Miranda rights, or police may legally continue asking questions. In this instance, a defendant was Mirandized and said nothing. Three hours later, the defendant said “yes” when asked if he had asked God to forgive him for a fatal shooting.

In a lengthy dissent, Justice Sonia Sotomayor insisted that the majority “turn[ed] Miranda upside down” by requiring defendants to not only verbally invoke their rights, but also use specific language when doing so.

Rely on Experienced Attorneys

You do indeed have the right to remain silent. To make the most out of this right, and all the other ones you have, contact an experienced criminal defense lawyer in Port St. Lucie from Eighmie Law Firm, P.A. Jail visits are available 24/7/365.




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