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One of the most frequent misunderstandings of the law involves the right to remain silent, otherwise known as the Miranda rights.

What are Miranda warnings?

Miranda requires that police inform a person being questioned that they have the right to remain silent and any statements they make can be used against them in court. Additionally, the officer must inform the individual that they have the right to have an attorney present during questioning, and an attorney will be provided for them if they cannot afford one.

When must police read your Miranda rights?

Often people believe that whenever police question them, the police must read the Miranda warnings. If they don’t, they cannot use anything that person says.

This is not true. Miranda warnings only apply to custodial questioning, meaning you must be in custody for the warnings to be required. If the police are merely questioning you and you are free to leave, they do not need to give the warning.

When are you considered “in custody” for Miranda purposes?

Although there is a huge amount of case law over what constitutes a “custodial interrogation,” the general rule is that the warning attaches when you are not free to leave, which is usually once you are arrested or otherwise cannot leave. Officers will often claim that you were free to leave the interview—even if they didn’t tell that was an option—in order to prevent your statements from being excluded as evidence.

Many times people make incriminating statements to police because they believe those statements cannot be used against them because the officer did not give the Miranda warning. These statements can be used, unless your attorney can convince a judge that you were actually in custody at the time of the statements.

Do I have Miranda rights if I am not “in custody”?

Even if you are not in custody, and even if police do not read you your Miranda rights, you still have the right to remain silent and have an attorney present during questioning. Staying silent until you have talked with your criminal defense attorney is the best way to avoid making incriminating statements that can be used to arrest and convict you.

What if I want to talk to police despite my Miranda rights?

Another frequent misconception people have is that if they just “explain their side” to police, the officers will understand and let them go. This is not a good idea. If officers suspect you, there is virtually nothing you can say that will change their mind. Even saying “I am innocent” will likely cause them to believe you are guilty. Many police reports note that officers observed the suspect to be nervous or agitated while proclaiming their innocence, which they believe indicates guilt.

What if police want me to explain my side? Should I invoke my Miranda rights?

Officers will frequently ask suspects to come in to “clear some things up” or otherwise suggest that the person only needs to explain what happened to convince the officer of their innocence. If police are asking to come to your home or for you to come in to the station, that is a clear sign they consider you a suspect, and not just a witness. The only safe way to convey your side of the story to police is with the assistance of an experienced criminal defense attorney, who can best present your side of the story and determine whether speaking with police will open you up to additional liability.

What is the best way to talk to police?

Even if you are sure you are above suspicion and genuinely want to help solve a crime, use caution when talking with police. You do not want your assistance to result in criminal charges against yourself. If possible, avoid speaking with officers inside your home; otherwise you are giving them an invitation to determine whether you have anything illegal in plain sight.

The best way to talk to the police is with the assistance of an experienced Los Angeles criminal defense attorney from Moaddel Law Firm (unless, of course, you are the victim of a crime—or are witnessing a crime—and need to call emergency services).

Call our office at (877) 375-8188 to set up a consultation today.