The Legal Myth Series Part One: If the Police Didn’t Read Me My Rights, My Case Gets Thrown Out
By James L. Spies | AggressiveCriminalLaw.com
We have all seen the TV shows where the detective snaps on the handcuffs and immediately says, “You have the right to remain silent…” It has led many people to believe that if the police do not read you your rights immediately upon your arrest, the case against you is automatically dismissed. That is a myth.
What the Law Actually Says
“Miranda rights” come from the U.S. Supreme Court case Miranda v. Arizona (1966). Police must inform you of your rights — the right to remain silent and the right to an attorney — only if:
You are in custody, and
They want to interrogate you (ask questions designed to get incriminating answers).
If both conditions are not met, Miranda warnings are not required.
What Happens if the Police Don’t Read You Your Rights?
If the police question you while you are in custody without giving the Miranda warnings, the consequence is usually that your statements may be excluded from evidence. That is, the prosecution may not be able to use your answers in their case-in-chief.
But — and here’s the important part — the case itself does not automatically disappear. The state may still use other evidence against you, such as physical evidence, witness testimony, or video footage. And even worse, in many instances the statements can be used to impeach you. That means if you take the witness stand and say something different than what is contained in the statement, the prosecutor can used the suppressed statement to suggest to the jury you’re lying by presenting them with a prior, inconsistent statement.
Kansas Example
In Kansas courts, judges apply the same federal Miranda rule. If the police stop you on the street and ask questions, they do not have to read you your rights because you are not “in custody.” If you are under arrest and they ask questions in an interrogation room without warnings, that is when suppression issues come into play.
What Happens if the Police “invite” you to come to their office to talk, and let you leave when you’re done?
I see this happen all too often: a new client comes to see me for the first time. While talking, I learn that they made a statement to the police. The detective called them to “clear up some things” and asked them to come to the police station to talk. The kicker… before the interview the detective told them they are not under arrest and can leave any time they want. Even better, no matter what is said during that interview, the person will be free to leave when it’s over. Must the police give you Miranda warnings in this scenario? In almost all cases is the answer is no. It hinges on the “custodial” prong of the Miranda analysis.
Why The Miranda Myth Is Dangerous
Believing this myth can lead people to talk freely with the police, thinking they can get a “get out of jail free” card later. In reality, what you say can still be used — either because Miranda didn’t apply, or because the prosecution can use your statements to challenge your credibility. Just because you did not hear the police say the “magic words” (Miranda warnings), do not believe that it is safe to talk to the police.
The Takeaway
Not hearing the words “you have the right to remain silent” does not mean your case will be dismissed. The safest move is to use your right to remain silent from the start and ask for a lawyer immediately.
If you have been arrested in Kansas, do not rely on myths or TV shows. Talk to an experienced criminal defense lawyer who knows how to protect your rights and challenge unlawful police conduct.
