You have the right to remain silent. This is the introduction of perhaps one of the most misunderstood concepts in the law. Commonly referred to as the Miranda warnings, these warnings originated in a United States Supreme Court case in the 1960’s.

The warnings are designed to insure the voluntariness of any statement made by a suspect to police; and include the admonitions that an individual has the right to remain silent, the right to an attorney (free of charge if that individual is indigent) and lastly, that anything one says can and will be used against them in a court of law.

The popular misconception is that an individual subject to arrest or some form of questioning by police must be given the Miranda warnings. This is not the case. These warnings are only legally mandated if two elements are present: 1) the person is in custody, and 2) the police are interrogating the individual.The concept of whether one is in custody is dependent upon whether that individual reasonably believes they are free to leave or that their freedom is somehow restrained.

There is no question that an individual under arrest is in custody. However, every case when the issue of custody is in question depends upon the facts of that individual case.

If it is clear that one is in custody and that individual blurts out an incriminating statement, there has been no violation of the Miranda case. The reason for this conclusion is that the individual in custody was not subject to an interrogation.

If the situation ever arises that the police are asking questions of you, the best course is to exercise your right to remain silent even if the police have not advised you of this right.

Please don’t hesitate to contact Ronald S. McGlaughlin if you have any questions pertaining to an issue of criminal law or procedure.

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