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Malcolm B. Seawell Oct. 22, 2020

I frequently speak to many seeking out the services of an attorney following an arrest or being charged with crimes. In many instances when we are discussing their case, incriminating evidence, outcomes and possible defenses, I hear from them say “but, I wasn’t read my rights.” “Doesn’t my case have to be thrown out?” I know of course what they’re referring to is the failure of the law enforcement officer to advise them of their Miranda rights. Those rights stem from the United States Supreme Court’s Miranda v. Arizona decision from 1966 where the court held that before questioning a person in-custody, the police must advise the person of certain Constitutional Rights. Specifically, those rights are 1) the right to remain silent and that anything they chose to say may be used against them (this is the right all of us have from the Fifth Amendment of the US Constitution not to be compelled to incriminate ourselves); 2) the right to consult with an attorney or counsel before and during any questioning or interrogation; and, 3) the right to an appointed attorney at no cost if the person is indigent. While these rights apply to everyone and while these warnings are required to be given before questioning a person in custody, the failure to advise someone of their Miranda rights is not a defense to a criminal case and is not in itself grounds to have a case dismissed. It’s important to recognize that the Miranda warnings are only required when the police question or interrogate you AND do so when you’re in-custody. What constitutes interrogation and what constitutes being in-custody are not always black and white, but generally roadside questioning following a stop for a traffic violation does not constitute custodial interrogation. However, if you’re in handcuffs and being questioned by the police you probably are in-custody and Miranda warning are required. Importantly, though even if you are subject to custodial interrogation where Miranda warnings are required but not given, then what that means is that those statements cannot be used against you – it does not mean the case must be dropped or dismissed. Importantly too, if you are subject to custodial interrogation without having been given your Miranda warnings those statements can still be used against you UNLESS you ask the court through a motion to suppress those statements that those statements be excluded. When such a motion to suppress is successful the chances of winning your case may be substantially improved. It’s even possible and maybe even likely that without your statements coming into the trial of the case it’s dropped or dismissed because the prosecutor determines without them there’s not enough evidence to convict you.

Most importantly, you need the services of a skilled advocate and the attorneys at the Law Offices of Malcolm B Seawell, PC are here to give you the help and counsel you need.