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“You have the right to remain silent:” Requirements of a Miranda warning

Anyone who has watched a crime drama on television is familiar with the ubiquitous Miranda warning, however, many may not fully understand the history or importance of the rights advisory. The Miranda decision provided a clear rule prohibiting coercion during interrogations (for example, questioning related to a theft or property crime).

The warning set out by the U.S. Supreme Court in 1966 was a way to ensure that suspects understood their Fifth Amendment right against self-incrimination. The warning generally must include the following:

  • An individual has the right to remain silent;
  • Anything said may be used against that person in a court of law;
  • An individual can speak to an attorney and have the attorney present during questioning; and
  • The court will appoint an attorney if the person cannot afford one.

These warnings must be provided in understandable language. If a law enforcement officer forgets a part of the advisory or does not clearly explain the rights, a later statement might not be admissible in a trial. This could mean that the prosecution will not be able to prove the criminal charges beyond a reasonable doubt.

The Miranda warning is required prior to any custodial interrogation, for example, when an officer arrests an individual on suspicion of DUI or impaired driving and places the individual in the back of a squad car.

What happens if you do not want to answer questions?

After saying that you do not want to answer any questions, interrogation must stop. Invoking your Fifth Amendment rights cannot later be used against you in a trial.

Interrogation refers to questions asked with the purpose of getting a confession. For instance, this can be an express question or some action that officers know might lead to an incriminating response. On the other hand, a request for consent to search a vehicle is not an interrogation, since the response of yes or no is generally not incriminating.

To invoke your rights, you need to tell the officer explicitly that you do not want to answer questions or that you want to consult an attorney before answering anything further. A statement of “I won’t answer any questions” should be enough to stop all interrogation. But asking whether it is necessary for you to speak with an attorney is not enough.

The importance of contacting an experienced attorney

Consulting an attorney immediately at the start of an investigation is one way to protect your rights. At the start of an investigation, it may still be unclear whether you are a suspect or what potential charges are on the table. What may seem to be an irrelevant detail could be used later to show an inconsistency and hurt your credibility.

Be respectful to the officers, but firmly explain you will not answer any questions until you have been able to consult with an attorney. If you have concerns that you did not fully understand your rights or were pressured to continue answering questions, grounds may exist to exclude your statement from a later trial.

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Mark C. Cogan, P.C., of Portland, Oregon, represents individuals charged with crimes throughout Oregon, including central Oregon, northern Oregon, Pacific Coast communities and the Willamette River valley, including Clackamas County, Washington County, Multnomah County, Columbia County, Marion County, Tillamook County, Clatsop County, Lincoln County, Lane County, Linn County and Benton County and the cities of Salem, Lake Oswego, Gresham, Oregon City, Tigard, Beaverton, Hillsboro, Tualatin, Milwaukie, West Linn, The Dalles and Clackamas.

© Mark C. Cogan, P.C., 2016 - 2017.