The question I am asked the most often by my clients: “They didn’t read me my rights when they arrested me! Does this mean you can get my case dismissed?” In order to answer this question, a lot more discussion needs to take place.
Almost everyone has heard their rights at one point, mostly from the crime dramas that seem to permeate the prime time T.V. circuit. “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 appointed to represent you. . . “. When do the police have to read you these rights? Under what circumstances? What happens if they don’t?
The Supreme Court has ruled that if you are in custody, the police may not interrogate you unless they have first advised you of your rights. Miranda v. Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed 2d 694 (1966). Interrogation means that the police are asking questions or making statements in an effort to elicit an incriminating response. Being in custody means that you are not free to leave. Case law has established that certain situations do not amount to custodial interrogation. For example, questioning a motorist on the side of the road after a traffic stop does not constitute a custodial interrogation that would require an officer to read you your rights. Berkemer v. McCarty, 468 US 420, 104 S Ct, 3138, 82 L Ed 2d 317 (1984). It has also been decided that, absent special circumstances, like arresting a citizen at gunpoint or forcibly subduing a citizen, questioning a citizen on the street, in a public place, or in a person’s house is not custodial. Schneckloth v. Bustamonte, 412 US 218, 93 SCt 2041, 36 L Ed 2d 854 (1973)
Once the police have read a citizen his rights, he must then make a decision as to whether to waive them and make a statement to the police or assert them and either remain silent or ask for an attorney. If a citizen asks for an attorney, the police have to immediately stop the interrogation. They cannot restart it unless an attorney is present or the suspect initiates the conversation.
If a police officer doesn’t follow these rules, then any statements that the citizen made will not be admissible in court, and any evidence that the police found as a result of the statements the citizen made will also not be admissible in court. It does not mean that the case will automatically be dismissed; it just means that the illegally obtained evidence cannot be used against the citizen if charges are filed.
The best thing to do when being questioned by the police is to remain polite and quiet. Memorize this statement: “Officer, I do not mean to be rude or disrespectful, but Michigan law says if I talk to you, and you think I am lying, you can charge me with a crime, so I do not wish to talk to you. I would like to have an attorney present if you would like to continue to speak with me.” You have the right to remain silent and the right to have an attorney. You should invoke both of those rights! Do not try to outwit the officer. Even if you think you could, why take the risk? If you have nothing to hide, you still shouldn’t make a statement. Sometimes a statement that you think is going to help you in the long run ends up hurting your case instead. Do not lie to the officer in an attempt to clear your name. Not only is it likely that the officer is going to figure out that you aren’t telling the truth, you can be charged with a crime for lying to an officer conducting an investigation. There are no laws preventing the officer from lying to you, but there is a new law that states it is a crime to lie to an officer:
Conceal from the peace officer (by any trick, scheme, or device) any material fact, or make any statement to the peace officer that is false or misleading regarding a material fact, or issue or provide any writing or document to the peace officer that the person knows is false or misleading regarding a material fact. MCL 750.479c
Remember: You have the right to remain silent and you have the right to an attorney. Assert your rights! Always ask for an attorney and never make a statement to the police without an attorney present. Our fantastic constitution has afforded us these rights for our liberty, and we should use them.