Do the Police Have to Read You Your Rights?
Generally speaking, yes the police have to read you your rights before subjecting you to a custodial interrogation. If the police fail to provide you this safeguard, there is a good chance that the statements elicited by the police can be suppressed or thrown out. However, please take caution. The law provides that you can waive – or give up – your privilege against incriminating yourself (often called the “self-incrimination privilege”). You must clearly assert your constitutional right to remain silent and ask for an attorney.
The U.S. Supreme Court explained the importance of the privilege against self-incrimination in its famous decision Miranda v. Arizona (1966). Law enforcement suspected Ernesto Miranda had committed the crime of rape. However, officers picked him up, took him to the police station, and extracted a confession after hours of coercive questioning. The U.S. Supreme Court ruled that these actions deprived Miranda of his constitutional rights under the Fifth Amendment to be free from self-incrimination.
The Court defined custodial interrogation as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” This means that before the police arrest you – and thereby deprive you of your freedom of movement – they must read you your rights.
Writing for the majority, Chief Justice Earl Warren explained that “the prosecution may not use statements … stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.”
The Court in Miranda also spelled out what those rights are. Chief Justice Warren elaborated: “Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.”
The Court later explained the procedure that must take place when an individual asserts his or her right to remain silent:
Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.
Many years later, some Supreme Court experts expected the U.S. Supreme Court to overrule Miranda. But, in Dickerson v. United States (2000), Chief Justice William Rehnquist, a critic of Miranda for years, wrote the Court’s opinion upholding Miranda. He famously wrote: “We do not think there is such justification for overruling Miranda. Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.”
The Miranda and Dickerson decisions involved the Fifth Amendment privilege against self-incrimination in the United States Constitution. The Tennessee Constitution also provides individuals protection against self-incrimination in Article I, Section 9. In fact, Tennessee courts have explained that the voluntariness test to determine whether a person has voluntarily confessed under the Tennessee Constitution is actually broader and more protective than under the U.S. Constitution. This means that the government must prove, by a preponderance of the evidence, at a suppression hearing that a defendant waived his or her rights.
But, in order to invoke your privilege against self-incrimination, you must clearly assert your rights. In other words, a reasonable police officer must objectively believe that you asserted your right to remain silent and your right to an attorney.
Tennessee court decisions provide some salient examples of a defendant exercising his right to remain silent. For example, the Tennessee Supreme Court ruled in State v. Crump (1992) that a defendant did assert his privilege against self-incrimination when he told police officers that he “did not have anything to say.”
Similarly, the Tennessee Court of Criminal Appeals held in State v. Lalone (2017) held that a defendant invoked his right to remain silent and be free from further police questioning when he said: “Well, then I ain’t got nothing else to say ’cause I done told you whatever I know.”
What all this means is that if the police arrest you, you have the right to remain silent and invoke your right to an attorney. If you are arrested, tell the police that you do not wish to speak to them and that you would like to speak to an attorney.
Attorney Philip N. Clark is an experienced criminal defense attorney who can assist who after you have been arrested. He handles many different types of criminal cases. Prior to becoming an attorney, served as a police officer for many years. He knows the tricks of the trade and knows how law enforcement officers often try to extract a confession. Even if you have allegedly confessed to a crime, he can assess to determine whether your “Miranda rights” were violated under the specific facts of your case.
Learn about your constitutional rights and don’t be afraid to assert them even when questioned by the police. We live in a free society, not a police state. This means you have the right to remain silent and you have the right to an attorney.