Miranda Warning - The Miranda Warnings

The Miranda Warnings

The suspect must be properly advised of their Miranda rights—namely, the Fifth Amendment right against compelled self incrimination (and, in furtherance of this right, the right to counsel while in custody). The Fifth Amendment right to counsel means that the suspect has the right to consult with an attorney before questioning begins and have an attorney present during the interrogation. The Fifth Amendment right against compelled self incrimination is the right to remain silent—the right to refuse to answer questions or to otherwise communicate information. Therefore, before any interrogation begins, the police must advise the suspect that:

1. they have the right to remain silent;
2. anything the suspect says can be used against them;
3. they have the right to have an attorney present before and during the questioning and
4. they have the right, if they can't afford an attorney, to have an attorney appointed at public expense to represent them before and during the questioning.

There is no precise language that must be used in advising a suspect of their Miranda rights. The point is that whatever language is used the substance of the rights outlined above must be communicated to the suspect. The suspect may be advised of their rights orally or in writing.

The Supreme Court has resisted efforts to require officers to more fully advise suspects of their rights. For example, the police are not required to advise the suspect that they can stop the interrogation at any time, that the decision to exercise right cannot be used against the suspect, or that they have a right to talk to a lawyer before being asked any questions. Nor have the courts required to explain the rights. For example, the standard Miranda right to counsel states You have a right to have an attorney present during the questioning. Police are not required to explain that this right is not merely a right to have a lawyer present while the suspect is being questioned. The right to counsel includes:

• the right to talk to a lawyer before deciding whether to talk to police,
• if the defendant decides to talk to the police, the right to consult with a lawyer before being interrogated,
• the right to answer police only through an attorney.

The duty to warn only arose when police officers conduct custodial interrogations. The constitution does not require that a defendant be advised of the Miranda rights as part of the arrest procedure, or once officer has probable cause to arrest, or if the defendant has become a suspect of the focus of an investigation. Custody and interrogation are the events that trigger the duty to warn.