OpenJurist

What are my rights after I have been detained by the police?

The Miranda decision relates specifically to the rights of a criminal suspect after he has been detained by the police. Fifth Amendment right against self-incrimination means that a person has the right to be advised of his or her right to remain silent, right to counsel and right to terminate any police interrogation once it has begun after being arrested, before he or she could be questioned by the police.

Miranda does not require that these rights be given to every person who is arrested. Frequently, a person is arrested and the police have no intention of asking him or her any questions about the alleged crimi­nal activity. If, however, the police do begin asking questions about the alleged criminal activity, then they are required to give the Miranda rights. If those rights are not given and the defendant divulges information in response to police questioning, that evidence may be excluded at trial. If the defendant spontaneously volunteers information, there is no Miranda requirement and therefore the evidence would not be excluded.

The scope of Miranda has been altered by different courts and generally is now held to apply not only to persons who have been arrested, but also to persons who have become the focus of a police investigation. Even if a suspect has not been arrested, if he or she has become the focus of a criminal investigation and the interrogation is what is deemed to be custodial -- taking place in a police station or another type of police environment -- then the police must give the Miranda rights to that suspect before conducting their interrogation.

A suspect or a defendant can waive the right against self-­incrimination and is free to speak to the police about his or her involvement in criminal activities. Experienced police officers normally require that waiver to be in writing or to be recorded so that there is no question that the suspect or defendant is voluntarily and knowingly waiving his or her rights.

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