You have seen it on TV a thousand times. A police officer makes an arrest, then tells the perp, “You have 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. If you cannot afford an attorney, one will be provided for you.”
In the Miranda v. Arizona case, the Supreme Court established that law enforcement officers must warn criminal suspects about two crucial rights under the United States Constitution: the Fifth Amendment right against self-incrimination (“No person shall be…compelled in any criminal case to be a witness against himself,”) and the Sixth Amendment right to legal counsel (“In all criminal prosecutions, the accused shall have the Assistance of Counsel for his defense.”) Only once this warning has been given may the suspect knowingly waive the right against self-incrimination and make a statement to police officers.
The Risk of Waiving Your Right Against Self-Incrimination
Miranda rights might sound like a powerful protection against the possibility of police officers abusing the rights of citizens. But over the years, the police have learned of ways to evade the protections that Miranda rights provide. A criminal suspect might waive the right to remain silent and speak anyway. You can imagine the intimidating situation: an armed, uniformed officer of the law gives a brief, pro forma announcement of your rights, then starts asking aggressive questions. A citizen might feel compelled to try to explain themselves, despite technically having the right to remain silent. But this is called a waiver of your right against self-incrimination, and it is exactly what the police officer wants: to be able to use your own words against you.
Remember, if you hear the Miranda rights, only tell the officer that you invoke your right to remain silent, and do not answer the officer’s questions unless you have a lawyer present to advise you what to say or not to say. Even if you say nothing whatsoever, there are some circumstances where your silence may be used against you if you do not affirmatively invoke the right to be silent. Even if you are silent at first and then answer the officer’s questions, that also counts as a waiver. As much as you might be sure the officer will accept your reasonable explanation, you can only hurt yourself by waiving the right to remain silent.
Miranda Rights Only Apply to Custodial Interrogations
Miranda rights do not apply in all situations where a police officer speaks to a citizen. The police only have to read you your rights immediately prior to what is called a “custodial interrogation.” A suspect is in custody if a reasonable person in the suspect’s shoes would believe they were not free to leave. But there are a lot of circumstances where most people would naturally assume that they are obligated to speak to the officer and unable to leave just because they want to; in those situations, the courts have still ruled do not count as “custodial interrogations.” An ordinary traffic stop is not a custodial interrogation. Even if you are being questioned at a police station, that is not necessarily a custodial interrogation.
What if You Have Been Questioned By a Police Officer?
The only way to completely protect yourself is to invoke your rights against self-incrimination and request an attorney. But If you have been questioned by a police officer in Illinois, it is not too late. Contact us today. David Freidberg represents the interests of Chicago residents. Call today at (312) 560-7100 to schedule an appointment.