If you are a fan of crime dramas on television, you can likely recite the Miranda warning from memory. This warning is the advisement officers give criminal suspects while arresting them. While it is often easy to discern the point of arrest in a scripted show, doing so in real life can be more challenging.
In a 1966 case, the Supreme Court of the United States held that police officers must advise criminal suspects of their right to remain silent and their right to legal counsel. These are two fundamental protections enshrined in the Bill of Rights. Still, officers do not need to give the Miranda warning every time they talk to a person.
A custodial arrest
When a police officer arrests you, he or she must inform you of your Miranda rights. You do not have to be in handcuffs or in an interrogation room, though. On the contrary, if you are not free to leave, you are probably past the custodial arrest threshold. Of course, officers may not make you aware that you can leave at any time. As such, you may want to ask whether an officer is detaining you or if you may move along.
Officers and prosecutors may use statements you make during either police questioning or an interrogation against you. Even seemingly harmless words may cause substantial damage. Therefore, even if an officer has not informed you of your constitutional rights, you may want to remain silent. If you are in custody, you also do not want there to be any confusion about your intentions. Accordingly, you likely want to tell officers both that you are choosing to exercise your right to remain silent and that you want to speak with an attorney.
You may know your Miranda rights by heart. Still, law enforcement personnel have an obligation to inform you of them. If they fail to do so after taking you into custody, you may be able to use the critical misstep as part of your defense.