How to Assert Your Miranda Rights

Here’s a guide to your Miranda rights on the occasion of their 50th anniversary. It’s a rough composite of the current state of the law, but you should always consult a lawyer about your specific situation before consenting to an interview with law enforcement.

The first thing to understand is that the police don’t have to give you Miranda warnings until they take you into custody and try to interrogate you. If you’re not in custody then you are free to go, and you probably should, but if you don’t, the police are free to question you as much as you’ll let them, and they don’t have to give you any warnings about it. Even if they briefly detain you based on reasonable suspicion, which they’re allowed to do, they can still question you during the stop without giving you warnings, though you’re free to assert your rights and consult a lawyer before answering (and you should).

How do you know if you’re in custody? Well, if you’ve been arrested then you’re in custody. But even if you haven’t been arrested, the test is whether a reasonable person in your shoes would feel like he or she were free to leave. So if you’re not feeling the conversation but don’t know if you can leave, you should ask. Am I in custody? Am I free to go? If you’re free to go then you should go. If you’re not then you should assert your rights and consult a lawyer before answering any more questions.

Even once you’re in custody, the police don’t have to give you Miranda warnings until they begin to interrogate you. Interrogation means they’re either directly questioning you about your arrest or doing something else that’s likely to elicit an incriminating response. That may not include their basic booking questions about your name, address, height, weight, and other biographical information, so you may not hear those warnings for some time. Remember that you don’t have to answer any questions you don’t want to.

Now, let’s say you’re in custody and want to assert your rights. How do you do it?

You must speak up. You must claim your rights to benefit from them. So speak up. Say that you don’t want to talk at all and that you want to see a lawyer. You have to speak the words. If you don’t, someone may decide that you waived your rights or didn’t assert them in the first place. It may sound strange, but you don’t necessarily invoke your right to remain silent by staying silent, so don’t leave it to chance. As long as you’re talking or saying nothing, you haven’t claimed your rights, and the police don’t have to leave you alone. And most likely, they won’t. The only sure way to make them stop is to assert your rights by saying you don’t want to talk and you want to see a lawyer.

You must ask for a lawyer. You have two rights to assert: a right to remain silent and a right to a lawyer before any questioning. You should assert both. But if you’re picking just one (and there’s no reason for that), make sure to say you want a lawyer. If you just say you don’t want to talk, the police will have to stop the interrogation, but they won’t necessarily have to leave you alone for long, and they may be able to come back and try again within hours. But when you say you want a lawyer, you automatically invoke your right to remain silent, too, and you cut off any further attempts at questioning for at least fourteen days.

You must be clear. You must assert your rights clearly. You can’t be vague, ambiguous, or equivocal. You shouldn’t ask them for advice or permission. You must say that you want a lawyer, period. The law is that you must assert your rights clearly enough that a reasonable police officer under the circumstances would understand your wishes. Don’t leave it to chance. If you’re not clear, the police may do anything to keep you talking or listening so they can keep the interview going. They may sidestep what you said or ignore it altogether. They don’t necessarily have to clarify your wishes or respond to you at all. Below are four actual examples where courts have ruled that people did not clearly invoke their rights.

  • “Maybe I should talk to a lawyer.”
  • “I think I would like to talk to a lawyer.”
  • “I think it’d probably be a good idea for me to get an attorney.”
  • “I don’t want to talk about it.”

Stick to something like these instead.

  • “I don’t want to talk at all [anymore].”
  • “I don’t want to talk.”
  • “I want to remain silent.”
  • “I want a lawyer.”

You must repeat as necessary. You must insist on your rights. Don’t count on the police to scrupulously honor them. Repeat yourself as needed if they ignore you, talk over you, threaten you, or otherwise disregard your wishes. Keep saying that you don’t want to talk and you want to see a lawyer. Keep saying that and nothing else until they leave you alone. Then contact a lawyer immediately.

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