Contact Us for a Free Consultation, By Appointment Only (571) 407-7084


"Custody" + "Interrogation" = "Miranda Warning": The Basics

Posted by George L. Freeman | Oct 15, 2019

In 1966 the Supreme Court of the United States decided the case of Miranda v. Arizona, 384 U.S. 436.  The Court ruled that in order to ensure an individual's 5th Amendment right against self-incrimination, one must be advised of their rights before the police may seek a statement from them.  Finding that police interrogation is inherently coercive, this advisement must be given to every person in every case - even to lawyers and police officers who may find themselves on the wrong side of the law.

What are the Miranda warning rights?

  • The right to remain silent
  • Anything said will be used against you in a court of law
  • The right to be represented by an attorney during questioning
  • The right to have an attorney provided for you if you cannot afford one

These rights to do not have to be read with any precise language, and you do not have to be advised of your rights in writing.  So long as the substance of the rights are communicated, the advisement is constitutionally sufficient.

When do the rights have to be read to me?

Miranda warning rights do not have to be given every time a person speaks with the police.  There is a formula for when the rights must be given: "Custody" plus "Interrogation" equals "Miranda Warning." 

A person is in custody when they are either placed under formal arrest, or their freedom of movement is restrained in a manner associated with formal arrest. 

Interrogation means the police are engaging in express questioning of a suspect, or its functional equivalent.  That is to say, either asking questions or communicating in a manner designed to elicit an incriminating response. 

If you are either not in custody, or you are not being interrogated, a Miranda warning is not required.

Situations where Miranda does not apply:

  • Consensual encounters with the police
  • Routine Booking questions after arrest
  • Exigent circumstances dealing with public safety (e.g. - to determine where a weapon or bomb is located)
  • Unprovoked or unsolicited spontaneous statements from a person in custody
  • Questions asked that are not within the definition of "interrogation"
  • Field sobriety tests during a DUI stop

Do I have to answer questions after a Miranda warning has been given?

No.  You never have to answer questions of the police.  Be careful though - if you decide to speak to law enforcement, you may be committing a crime if you lie to them.  If you do not want to speak with the police, or if you want a lawyer present before speaking to the police, simply say so.  You cannot get in trouble for invoking your right to remain silent or your right to counsel.

Does the government have to prove that I waived my Miranda rights?

Yes.  Before statements made by you during a custodial interrogation can be used against you in court, the government must prove a knowing and voluntary waiver of those rights.  A waiver can be inferred by answering questions after being advised; you do not have to state or affirm you are waiving your rights.  Merely answering questions after the rights are given could be enough to use those statements against you at trial.

Can I invoke my rights under Miranda after waiving them?

Yes.  You may initially waive your right to remain silent and your right to counsel.  You can invoke your rights at any time thereafter.  Once you have invoke either or both of your rights under Miranda, custodial interrogation must cease.  You can also re-initiate questioning by the police after invoking your rights.  It is totally up to you whether to speak with law enforcement or not.

What happens if Miranda warnings are not given, or if I make a statement but did not knowingly and voluntarily waive my rights?

Those statement obtained in violation of Miranda are not admissible against you in the government's case.  However, if you testify in your own defense and say something different at trial than what you told the police, your statements (even though in violation of Miranda) may be used against you to impeach!

Does the "fruit of the poisonous tree" apply to Miranda violations?

No.  The "fruit of the poisonous tree" doctrine states that when police make an illegal search or seizure (in violation of the Fourth Amendment) of a person or thing and thereafter discover evidence, that evidence may be excluded at trial against a defendant.  There are a number of exceptions not discussed here. 

But for purposes of Miranda, if there is a violation and your statements are suppressed (not used against you at trial) any evidence the police found based on the statements you made will not be suppressed.  So if you told the police you stole a television and it is behind a dumpster, while your confession would not be admissible the stolen television could be admitted as evidence at trial.  And if your DNA or fingerprints were found on the television you could, in theory, be convicted even without your confession. 

To make matters more complicated, if you are unlawfully arrested (a seizure in violation of the Fourth Amendment) and then given proper Miranda warnings, in that instance your statements may be "fruit of the poisonous tree" and held inadmissible.  These issues get very tricky as you can see.

About the Author

George L. Freeman

I was born and raised in Fairfax County.  I graduated from Fairfax High School and then from Virginia Tech.  After spending a few years as a bail bondsman and court clerk, I attended the University of Baltimore, School of Law.  I graduated in 2010 with a Juris Doctor, manga cum laude. I spent 9 ...

Contact Us Today!

We offer a free consultation, in-person or virtually on video, and will gladly discuss your case with you at your convenience. Contact us today to schedule an appointment, day or evening, weekday or weekend. We answer calls day or night.