You've probably seen it on T.V. or in the movies – someone is arrested by the police, and as soon as the handcuffs are on, the officer says the well-known line, “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 for you.”

Those famous words are called the Miranda warning, and they are a crucial part of any criminal case.

The 5^th Amendment provides that no person “shall be compelled in any criminal case to be a witness against [themselves].” In other words, every person has the right to remain silent and is under no obligation to give statements to the police.

However, law enforcement wasn't always required to read this warning. It wasn't until 1966, in the case of Miranda v. Arizona, 384 U.S. 436, that the United States Supreme Court held that, prior to being questioned by law enforcement in certain situations, individuals must be told some version of the following:

• they have the right to remain silent;
• anything they say can be used against them in a court of law;
• they have the right to the presence of an attorney; and
• if they cannot afford an attorney, one will be appointed to them prior to any questioning.

HOWEVER – and a big HOWEVER – law enforcement is only required to provide this warning in certain situations.

So, when is law enforcement required to read the Miranda warning?

When they are subjecting an individual to a “custodial interrogation.” What exactly does that mean?

We'll start at the end, with the term “interrogation.” An “interrogation” doesn't mean any and all questioning or conversation with law enforcement. Rather, it is much more specific. “Interrogation” has been held to mean “any words or actions on the part of the police […] that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301 (1980). This provides some guidance, but is still generally quite a vague definition.

As noted, in order for the Miranda warning to be required, the interrogation must also be “custodial.” When is an interrogation considered “custodial”?

The test for determining whether an interrogation is “custodial” and requires a Miranda warning is “whether a reasonable person in the place of the detainee would believe that he or she was in custody.” State v. Rosse, 478 N.W.2d 482, 484 (Minn. 1991). More specifically, for purposes of determining if an individual was “in custody” for purposes of a Miranda warning, courts will analyze, given all the circumstances, if the person was “restrained ‘to a degree associated with formal arrest,' and if that belief is objectively reasonable.” State v. Rosse, 478 N.W.2d 482, 484 (Minn. 1991).

So, putting the two together, in order for law enforcement to be required to read a Miranda warning prior to questioning an individual, the individual must be considered to be:

• Restrained to a degree associated with formal arrest, and that belief is objectively reasonable; and
• The questioning law enforcement agent engaged in questioning or actions that the police should reasonably know are likely to elicit an incriminating response.

If law enforcement takes a statement (or confession) from someone without reading them the Miranda advisory when they were supposed to, any statement given, and possibly any additional evidence resulting from that statement, may be suppressed and excluded from use by the government.

While it seems straightforward that a Miranda violation means the evidence obtained as a result can't be used, the law is more complex and nuanced than that. Despite the fact the right to remain silent is an explicit constitutional right, the Supreme Court has held that it must be affirmatively invoked! What does that mean? Find out more here, in Part II.

While each case is different, consulting with an attorney can be crucial to protecting your rights and getting the best possible case outcome. Contact Peterson Legal today for your free consultation!