Most people are familiar with the term “Miranda rights” after seeing countless cops on TV reading criminal suspects their rights. The Miranda warning was named after the 1966 Miranda v. Arizona case, in which the U.S. Supreme Court ruled that persons detained by police must be told of their Fifth Amendment right to avoid self-incrimination during police interrogation and their Sixth Amendment right to counsel. If police do question a detainee without giving a Miranda warning, anything the person says will usually be inadmissible in court.

History of the Miranda Warning

The Miranda warning came after the U.S. Supreme Court found that the rights of Ernesto Miranda were violated following his arrest in 1963. After being questioned by police for two hours, Miranda confessed to kidnapping and raping an 18-year old woman. He was never offered legal counsel. Based on his confession, he was convicted and sentenced to 20 years in prison.

Eventually, the U.S. Supreme Court heard the case and ruled that because Miranda had not been advised of his constitutional rights, the confession should not have been used as evidence at his trial. The Court overturned Miranda’s conviction in its landmark ruling.

During Miranda’s second trial, which excluded his confession, he was convicted again and sent to prison.

How the Miranda Warning Works

Once an individual has been detained and before police begin questioning, the police must read the detained person a Miranda warning. While the Supreme Court did not specify the exact wording to be used, here is a common form of the warning:

“You have the right to remain silent. If you give up the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to an attorney and to have an attorney present during any questioning. If you wish to have an attorney and cannot afford one, one will be appointed for you at no cost. Do you understand these rights that have been read to you?”

Sometimes police ask a detainee to sign a statement acknowledging that he or she has heard the warning and understands it.

If someone being detained by police asks for an attorney, the police must cease interrogation until legal counsel is present, respecting the individual’s constitutional right to remain silent.

What Is Detention?

Law enforcement officers are required to give Miranda warnings only when they have someone in custody or the circumstances are such that a reasonable person would conclude that he is not free to walk away. If you talk freely to the police without being in custody, and you are free to walk away, any incriminating information you offer could be used in court.

While police custody (arrest) is usually clear enouth, it’s not always obvious whether  someone is free to leave. Police often question people before they actually arrest them. Generally, you are considered to be at liberty to leave if a reasonable person in the same circumstances would not feel free to leave. It doesn’t matter whether you are in an interview room in a police station, at a crime scene, or in your front yard.

Age can also play a role. In a case involving a 13-year-old who was pulled out of class and questioned by police and school administrators, the U.S. Supreme Court ruled that any “reasonable person” analysis should take into account a juvenile suspect’s age. A child, the Court stated, would feel less free to leave a school conference room than an adult would. (J.D.B. v. North Carolina, June 2011.)

Invoking Miranda Rights If You’re Questioned

If the police want to question you about a crime, the first thing you should say is, “I want an attorney.” Whether or not you are guilty of any wrongdoing or have information about the crime, you’re better off not saying a thing until a lawyer is present to safeguard your constitutional rights.

The police are required to stop questioning you once you, at any time, invoke your constitutional right to remain silent. You should not, however, just refuse to answer questions; you must state clearly that you intend to exercise your right to remain silent. Only when you unambiguously invoke your right to remain silent must the police end their questioning.  (Berghuis v. Thompkins, 130 S. Ct. 2250 (2010).)