Criminal Defense Attorney and the 50th Anniversary of Miranda

As a criminal defense attorney it is notable to me that June 13, 2016, marks the 50th anniversary of one of the U.S. Supreme Court’s most famous decisions. Thanks to the Miranda opinion, anyone who has seen a TV crime drama is familiar with four standard warnings:

1. You have the right to remain silent.
2. Anything you say can be held against you in a court of law.
3. You have the right to an attorney.
4. If you cannot afford an attorney, one will be provided to you.

The Supreme Court rarely – if ever – has created a rule that applies so broadly to so many people. It is even rarer that a Supreme Court opinion becomes a fixture of popular culture. As early as 2000, the Supreme Court held that the Miranda warnings “have become part of our national culture.” Dickerson v. U.S., 530 U.S. 428. They have only become more prevalent and familiar since then.

Despite being familiar with the language of these warnings, many people are not aware of when their Miranda rights apply. Miranda rights apply to a person who is under custodial interrogation. A person is considered to be in custody if he or she has been “deprived of [their] freedom in any significant way.” Miranda v. Arizona, 384 U.S. 436 at 444. Interrogation occurs when officers know – or should know – that their statements are likely to elicit an incriminating response. Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682. The statements can be either direct questioning or its “functional equivalent.” Id.

Surprisingly, the mere act of remaining silent is not enough to stop questioning by officers. It may seem strange, but until you actually state that you are remaining silent, officers can continue to question you. See Berghuis v. Thompson, 560 U.S. 370 (2010) and Salinas v. Texas, 133 S. Ct. 2174 (2013). Similarly, you must state that you are invoking your right to not answer questions without a criminal defense attorney present. The fact that an attorney has been appointed to represent you is not enough to stop questioning. Montejo v. Louisiana, 556 U.S. 778 (2009). Neither is the fact that your attorney is attempting to contact you at the police station: because the right to counsel is personal, your attorney cannot invoke it on your behalf. See Moran v. Burbine, 475 U.S. 412 (1986).

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