Without a doubt, the most common question posed to any criminal lawyer by a prospective client is, the cops never read me my rights, shouldn’t the case be dismissed? Here’s the skinny on this issue: The sacred “rights to remain silent” are indeed an inherent part of the criminal justice system.. These rights are deeply cemented in the fifth amendment to the US Constitution. The rights mandate that the police tell a person suspected of criminal activity that they have a right to an attorney, the right to have the attorney present before and during ant questioning by law enforcement, that the person will be appointed a lawyer if he or she cannot afford a private lawyer, and finally that the individual has the total right to simply remain silent completely, thereby not incriminating himself.
Behind the face of the rights however, as quoted from a Palos Verdes Criminal Defense Lawyer is that the rights are only required when two very important conditions have been met. First, that the criminal suspect is actually in custody versus simply being detained by the police. A classic situation is when the police merely stop and have a freely consenting conversation with a person on the street, or when a person is merely stopped for a traffic ticket. Secondly, the criminal suspect must be “interrogated”. This means that law enforcement must be asking questions that are designed to elicit an incriminating response. For example, if the police are simply asking basic identification questions such as : Your name; Your Address, etc.
At the end of the day, the law says that a normal arrest does not ordinarily require the reading of rights. If a person is not interrogated or questioned about the alleged criminal activity after being placed in handcuffs then the Miranda rule necessitating the advise of rights is not mandatory. A criminal defense attorney should be spoken to when a person is unsure whether their constitutional rights have been violated, this area of the law is complex and has many fact specific nuances. Use this advise: speak to a lawyer, and if you are questioned by law enforcement you should always ask to speak to an attorney before saying anything!