The Right To Remain Silent-Miranda Rights in the 21st Century

Detroit Criminal Lawyer Examines The Right to Remain Silent and the role of the “Miranda Warning” in the 21st Century

Criminal Lawyer in DetroitAs a criminal defense attorney in Detroit, Michigan, one of the first questions asked of me by many of my clients following an arrest is “I was arrested and the police never read me my rights, shouldn’t my case be dismissed”. For many clients, a belief exists that this failure by the police to read them their Miranda Rights or provide a “Miranda Warning” constitutes an automatic dismissal of their ensuing criminal charges.


This often leads me with the responsibility to explain the purpose of the Miranda Warning, and how the court will ultimately view the police officer’s failure to read my client their Miranda Rights. Often surprised, and sometimes even outraged by my response that the failure of the police to read my client their Miranda Rights will not alone result in the dismissal of their criminal charges, I thought it was worthwhile to review the historical background of the “Miranda Warning” and its current role in the 21st century of social media to help my clients and the general public understand their rights under the Miranda law.


Historical Landscape of the Miranda Warning


The “Miranda Warning“, more commonly referred to as “Miranda Rights”, acts a constitutional safeguard by police to warn persons in police custody, or those subject to custodial interrogation by law enforcement of their consitutional right to remain silent and not make any statements (written or oral) to law enforcement while in custody. The Miranda Warning was first established in the historical Supreme Court case of Miranda v. Arizona in 1966. Ironically, the Miranda Warning is not only provided to protect the rights of the arrestee, but also to preserve the admissibility of any statements provided by the arrestee to law enforcement in court.


The ultimate goal is to preserve or safeguard a person’s Fifth Amendment right against self-incrimination by offering a statement or confession to the police without first knowing their right to refuse to do so. Thus, after being read their Miranda Rights, if a person makes a confession or statement to the police, that confession or statement would not be a violation of their right against self-incrimination and will likely be upheld in court during the criminal proceedings.

Typical Miranda Rights will include statements similar to:

  • You have the right to remain silent when questioned.
  • Anything you say or do may be used against you in a court of law.
  • You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future.
  • If you cannot afford an attorney, one will be appointed for you before any questioning, if you wish.
  • If you decide to answer any questions now, without an attorney present, you will still have the right to stop answering at any time until you talk to an attorney.
  • Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney present?

The above Miranda Rights however are not always given or provided by law enforcement, which leads to much of the confusion of when Miranda Rights should be read and provided by the police, and the consequences for police when these rights are not given.


When should Miranda Warnings be invoked by the Police?


At what point should police provide the Miranda Warnings or read a person their Miranda Rights is of critical importance to understand. Legally, the police or law enforcement must read a person their Miranda Rights at the point a person is arrested by the police (i.e. handcuffed); detained by the police (i.e. held for questioning or where a person believes that he or she is not free to leave); or where a person is subject to police custodial interrogation in which it is expected that a person is to speak or provide a statement about the crime(s) in question.


Thus, when a client tells me that the police failed to read them their Miranda Rights, one of the first questions I ask my client is exactly what point did you feel that you were under arrest? This is where the clock begins to tick in terms of whether or not a person’s Fifth Amendment right against self-incrimination has been violated or not. Any statements or confessions provided to law enforcement prior to being under arrest is fair game and in most cases admissible as a confession in court against the defendant.


Examples of when the police do not need to read you your Miranda Rights include a routine traffic stop where the police officer asks you “have you been drinking” or “have you been smoking marijuana” and you respond “YES”. Your statement of “Yes”, will be considered a voluntarily statement and not one of self-incrimination because at that time you were not under arrest or technically in police custody.


However, if and when the officer decides to arrest you, at that point the Miranda Warnings should be given to protect you from providing any incriminating statements to law enforcement without prior knowledge of your Miranda Rights. If these Miranda Warnings were not given, and you still provided the police with an incriminating statement or confession, then a criminal defense attorney can argue that the confession should be inadmissible and thrown out in violation of the Fifth Amendment.


Miranda Rights in the 21st Century

The issue of whether or not a person adequately invoked their right to remain silent remains one of the most debated constitutional challenges in criminal law today.


Court: Convicted Killer’s Rights Not Violated By Fort Smith Police


Pre-Miranda Questioning Inadmissible in Terror Case 


More importantly, in an era where more and more crimes are being investigated by law enforcement via social media, a question remains as to whether or not a person’s admission of a crime on a Facebook post or during a tweet will raise the constitutional challenge of the Fifth Amendment where no Miranda Warnings could have possibly been given prior to an arrest. Most recently was was the case of Matthew Cordle who posted a youtube video admitting that he killed a man while driving drunk prior to his arrest, only later to enter a not guilty plea in court in his attorney’s attempt to present the youtube video as inadmissible evidence.



As the law is ever evolving concerning the Fifth Amendment and a persons right to invoke their right to remain silent, as a Detroit Criminal Defense Attorney, my advice is to ALWAYS REMAIN SILENT when it comes to speaking to the police. It is far better, and much easier to not to make a statement at all to the police instead of challenging the validity of the statement in court only to have the Judge rule the statement or confession as being admissible. Although I am certain that the future will present many situations where the issue of Miranda Rights will be at the forefront of my case, my hope is that this article has helped shed some light on this confusing yet all important topic.


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