Criminal Arrests and Interrogations FAQ

Learn about your rights during police interrogations and arrests.

If I'm arrested, do the police have to "read me my rights"?

No. However, if they start questioning you but haven't read you your rights, they can't use anything you say as direct evidence against you at trial. What are these rights? Popularly known as the Miranda warning (ordered by the U.S. Supreme Court in Miranda v. Arizona), your rights consist of the familiar litany invoked by TV police immediately upon arresting a suspect:

  • You have the right to remain silent.
  • If you do say anything, what you say can be used against you in a court of law.
  • You have the right to consult with a lawyer and have that lawyer present during any questioning.
  • If you cannot afford a lawyer, one will be appointed for you if you so desire.
  • If you choose to talk to the police officer, you have the right to stop the interview at any time. (This part of the warning is usually omitted from the screenplay.)

It doesn't matter whether an interrogation occurs in a jail or at the scene of a crime, on a busy downtown street, or in the middle of an open field: If you are in custody (deprived of your freedom of action in any significant way), the police must give a Miranda warning if they want to question you and use your answers as direct evidence at trial. If you are not in police custody, however, no Miranda warning is required. This exception most often comes up when the police stop someone on the street for questioning about a recent crime and the person blurts out a confession before the police have an opportunity to deliver the warning. (To learn more about Miranda Rights, see When Police Violate the Miranda Rule and Exceptions to the Miranda Rule.)

Will a judge dismiss my case if I was questioned without a Miranda warning?

Not necessarily. Many people mistakenly believe that a case will be thrown out of court if the police fail to give Miranda warnings to the arrested person. What Miranda actually says is that a warning is necessary if the police interrogate an in-custody suspect and want to use any of her responses as evidence. If the police fail to give you a Miranda warning, nothing you say in response to the questioning can be used as evidence to convict you. (There are exceptions, however.)

The "fruit of the poisonous tree" rule requires that courts suppress evidence that comes from other, illegally obtained evidence. But it doesn't apply to Miranda in the way that it does to the Fourth Amendment. Physical evidence (drugs, for example) that police learn about because of a statement following a missing Miranda warning will often be admissible in court. (See If the Police Find Evidence Because of a Miranda Violation, Is the Evidence Inadmissible?)

What's the best way to assert my right to remain silent if I am being questioned by the police?

If you’re under arrest and you wisely choose to remain silent at least until you have a chance to consult a lawyer, you should tell that to your interrogator. If you just keep your mouth shut and say nothing, the police can legally continue to question you, and if they do, you might eventually say something you later regret. (Somewhat ironically, the general rule is that you have to say something to claim your right to remain silent.) However, you don't have to use a precise set of words to invoke your Miranda rights. After an officer gives you a Miranda warningw, you can stop the questioning by saying something like:

  • “I don’t want to talk to you; I want to talk to an attorney.”
  • “I refuse to speak with you.”
  • “I invoke my privilege against self-incrimination.”
  • “I claim my Miranda rights.”

In general, if the police continue to question you after you have asserted your right to remain silent, they have violated Miranda. (But see Police Questioning After the Suspect Claims Miranda, which discusses differences between invoking the right to silence and the right to counsel.) As a result, anything you say after that point will not be admissible as evidence of guilt at your trial. (See Statements Obtained When Police Violate Miranda for more, including exceptions.)

For more on the right to silence after arrest, see Miranda and Post-Arrest Silence. And for information on invoking the Fifth Amendment when the defendant isn’t in custody, see Invoking Your Right to Remain Silent.

For a full explanation of the law—including how it applies to your situation and how it might vary in your state—consult an experienced criminal defense attorney.

How heavy-handed can the police get when asking questions?

Information that you voluntarily disclose to a police officer (after you have been properly warned) is generally admissible at trial. The key word is "voluntary." Police officers are not allowed to use physical force or psychological coercion to get you to talk to them. The days of the rubber hose, protracted grilling under bright lights, and severe sleep deprivation are pretty much over. If police officers obtain information through any of these illegal means, the information cannot be used by the prosecutor at trial. In addition, under the rule known as "the fruit of the poisonous tree," any evidence that the police obtain as the result of a coerced statement is equally inadmissible.

Defendants often claim that police officers coerced them into talking. And it's just as common for police officers to say that the defendants spoke voluntarily. If the police physically coerce a defendant into talking, the defendant can support his coercion claims with photos of marks and bruises. But actual police brutality is unusual, and a defendant cannot usually offer independent evidence to support his claims of psychological coercion. Judges, believing that defendants have a greater motivation to lie than do police officers, usually side with the police and conclude that no coercion took place.

Can a person who is charged with a crime be forced to give bodily samples?

Yes. You might think that being forced to give bodily samples -- such as blood, hair, or fingernail clippings -- is a violation of the U.S. Constitution's protection against self-incrimination, found in the 5th Amendment. But the U.S. Supreme Court thinks otherwise. It has ruled that the 5th Amendment protects communications only, and that bodily samples are physical evidence and therefore not covered by the protection against self-incrimination.

I was pulled over at a roadblock and asked to wait and answer a police officer's questions. Is this legal?

Yes, as long as the police use a neutral policy when stopping cars (such as stopping all cars or stopping every third car) and minimize any inconvenience to you and the other drivers. The police can't single out your car at a roadblock unless they have good reason to believe that you've broken the law.

For information on drunk driving/driving under the influence/driving while intoxicated, see Nolo's Drunk Driving, DUI, and DWI FAQ.

To Learn More

For clear and complete explanations of all aspects of criminal law and procedure, read The Criminal Law Handbook: Know Your Rights, Survive the System, by Paul Bergman and Sara Berman (Nolo). If you wish to speak with a criminal defense attorney, you can turn to Nolo's trusty Lawyer Directory to find a lawyer near you.

When do the police need a warrant to make an arrest?

Normally, as long as the police have good reason (called "probable cause") to believe that a crime has been committed and that the person they want to arrest committed the crime, they can make an arrest without asking a judge for a warrant.

The big exception? The adage "a man's home is his castle" rings true when it comes to arrests: The police must normally have a warrant to arrest a person at home. Read an overview of arrest-warrant law for more detail.

Should an arrestee ever give a statement to the police?

You’ve never committed a crime in your life but the police, investigating some burglaries in your neighborhood, detain you while on your way home from a club late one night. You want to explain to the police what you were doing and clear this up. And, they say they want to talk to you. What’s the downside to talking to the cops? In general, the downside is potentially huge and there is no upside for you.

Arrest is “Custody”

A person under arrest is in the custody of police. As a general rule, police must advise an individual in custody of the Miranda rights (including the right to remain silent and the right to speak to an attorney) before interrogating. A prosecutor cannot use the silence of a person during an in-custody interview as evidence of guilt at trial. (But see Miranda and Post-Arrest Silence.)

Fifth Amendment rights

The Miranda warning includes a reminder that a suspect has a right to remain silent. This right is found in the Fifth Amendment to the U.S. Constitution, which states that every person has a right not to incriminate him- or herself. But, if a person chooses to speak, he may give up that right.

Every statement you make to police is evidence that can be used against you. You are essentially doing the work for the police and prosecutor to help them convict you! There is a reason every person arrested has a right to remain silent and to have an attorney present during questioning: to even the “playing field.” A person who does not exercise these rights is standing alone, completely out-gunned, against a prosecutor with massive resources by comparison.

Silence in pre-custody interview may be used

Under certain circumstances, a defendant’s silence during police questioning may be used against him at trial. Where the police question a suspect before placing him under arrest and before reading him his Miranda rights, his silence in response to some questions might be admissible evidence at trial. (For much more on this issue, including the way the law may differ in some places, see Invoking Your Right to Remain Silent.)

Anything You Say Can Be Used Against You

People under arrest often think that if they just deny everything, they will be helping their case. In fact, if the prosecution shows that just one part of what was denied was actually true, the defendant’s credibility is damaged and the defendant’s attorney will have a much harder time defending him.

At times, police will want to question a person because they don’t believe they have enough evidence to even arrest him and they hope he will inadvertently give them enough information to support a charge.

New charges

By speaking to police, a suspect may also inadvertently give them grounds to press new charges against him. For example, a suspect who lies during an interrogation might be opened to a charge of obstruction of justice. Or a suspect who blurts out the names of other people involved in a crime might be charged with conspiracy. In some cases, a person’s statement to police can lead to charges the cops had not previously thought of pressing even when the original charges that led to the arrest are dropped!

Talk to a Lawyer, Not the Police

Even an honest statement to the police by someone who's innocent can be a problem. For one thing, the statement might contain inadvertent inaccuracies or inconsistencies that the prosecution will later pounce upon.

A person under arrest almost never benefits by talking to the police. Instead, a person in that situation should assert the right to counsel, tell the police he wants to speak to an attorney, and then find a lawyer. An experienced criminal defense attorney will help the person deal with the police, the charges, and any trial.

As long as the police have good reason (called "probable cause") to believe that a crime has been committed and that the person they want to arrest committed the crime, they can normally make an arrest without asking a judge for a warrant.

The big exception? The adage "a man's home is his castle" rings true when it comes to arrests: The police must normally have a warrant to arrest a person at home. Read an overview of arrest-warrant law for more detail.

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