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THEY DIDN’T READ ME MY RIGHTS!…BUT…DOES IT MATTER?

There is a common misconception about your rights, relating to a person’s “Miranda” rights, and the effect of an officer not reading you Miranda warnings when you are arrested.  Movies and television would have you believe that it is some kind of magic bullet – if they did not read you Miranda warnings, you were going to walk on whatever charges you are facing. Miranda v. Arizona, 484 U.S. 436 (1966).

Not so fast.  “Miranda” has a limited application.  There are two requirements for Miranda to apply:

(1) Custody, and (2) Interrogation.

Essentially, the Miranda court case held that if you are under arrest, you must first be given certain warnings about your constitutional rights, your right against self incrimination (the 5th amendment), and your right to consult with an attorney (6th amendment).

However, for Miranda to apply, it is essential that you are actually IN CUSTODY.  By that I mean, you are under arrest.

How do you know when you are under arrest?

The Texas Code of Criminal Procedure defines the point someone is under arrest as: “when he has been actually placed under restraint or taken into custody by an officer…”Texas Code of Criminal Procedure Section 15.22.  In interpreting when an arrest takes place, the 5th Circuit has weighed in with an objective standard: “if a reasonable person in the suspect’s position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with a formal arrest.  United States v. Corral-Franco, 848 F.2d 536, 540 (5th Cir. 1988).

What If You are Under Arrest, Not Given Miranda Warnings, and Then Questioned?

If you are not notified of, and affirmatively waive the following prior to any custodial interrogation, any statements made in violation of Miranda may be inadmissible against you in a criminal prosecution:

  • The right to remain silent
  • Any statements you make can and will be used against you in court
  • You have a right to consult with an attorney prior to answering any questions
  • If you cannot afford an attorney, one will be appointed to represent you free of charge

If you are under arrest and the police want to question you DO NOT ANSWER ANY QUESTIONS WITHOUT CONSULTING WITH AN ATTORNEY FIRST.


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