"[A defendant] must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." Miranda v. Arizona , 384 U.S. 436 (1966).
In 1966, the United States Supreme Court’s Miranda v. Arizona decision gave rise to what has come to be known as the Miranda Warning. Prior to this decision, the Due Process clause of the Constitution was the only limitation on law enforcement conduct when conducting investigatory interrogations of suspects. During the Pre-Miranda era, law enforcement only needed to demonstrate that a confession was obtained voluntarily "under the totality of the circumstances." That is to say, that any statements made to law enforcement by a suspect could be used against that person as evidence at trial so long as the reliability of the statements was not called into question due to coercive or otherwise offensive law enforcement practices.
Since Miranda, law enforcement is constitutionally required to read a suspect his Miranda Rights before questioning him in custody. Miranda essentially expanded the Fifth Amendment privilege against self-incrimination beyond the scope of the criminal trial. However, the protections that Miranda affords does not extend to situations in which a person voluntarily speaks with the police. Furthermore, Miranda warnings are not necessary when a suspect is not "in custody." In many situations, law enforcement may attempt to question a suspect without placing them "in custody" in order to avoid instructing the suspect of his rights.
In the event that law enforcement fails to read a suspect in custody his rights prior to questioning, any statement or confession made will be excluded from evidence and will not be admissible at trial. This does not necessarily mean that the prosecution will dismiss the indictment against the defendant because they may have sufficient evidence notwithstanding the defendant's statements to proceed.
1. You have the right to remain silent.
The Fifth Amendment: No person shall… be compelled in any criminal case to be a witness against himself.
No person can be compelled to be a witness against him or herself in any criminal proceeding in which they have been named as a defendant. As mentioned above, Miranda expanded this Fifth Amendment right to custodial interrogations. As such, if a suspect is being questioned they have the right to be free from providing any information that my lead to incriminating evidence. However, in order for a person to take advantage of this privilege they must make it clear to investigators that they are invoking their Fifth Amendment rights.
An adequate invocation of the right to remain silent occurs when the suspect says, unambiguously, that he wishes to remain silent, or that he does not wish to talk with law enforcement. A suspect should state the following in order to clearly invoke the privilege: “I invoke my Fifth Amendment right to remain silent, and I will not answer any more questions without my attorney present.”
2. Anything you say can and will be used against you in the court of law.
The Rules of Evidence govern the admissibility of statements which may be used as evidence during a criminal trial. As a general rule, an out-of-court statement made by others is considered hearsay and is not admissible as evidence. But under the Kentucky Rules of Evidence, a statement is not considered hearsay when it is offered as evidence against a party opponent (i.e. the Defendant). KRE 801A(b)(1). This exception to the Hearsay rule allows investigators to testify about statements that the Defendant made to them during the course of the investigation.
Rarely do a suspect’s own words to investigators benefit them at trial. Many law enforcement interrogation tactics are deliberately designed to elicit what may appear to be incriminating information. Although anything you say can and will be used against you in the court of law, your silence may not; the prosecution is prohibited from using the fact that you chose not to speak with law enforcement as evidence of your guilt at trial.
3. You have a right to an attorney.
The Sixth Amendment: In all criminal prosecutions, the accused shall enjoy the right to… have the assistance of counsel for his defense.
The Sixth Amendment, like the Fifth, is another integral part of the Bill of Rights that affords protections to those facing criminal prosecution. Both the Sixth Amendment and Section 11 of the Kentucky Constitution guarantee the accused a right to an attorney when charged with a crime.
The right to counsel attaches when a person has been formally charged with a crime. At arraignment, the criminal defendant is advised of this right. Once the right is vested, law enforcement is prohibited from engaging in behavior that is deliberately designed to elicit incriminating information from the defendant without his or her attorney present.
4. If you cannot afford an attorney one will be provided for you.
The Commonwealth is required to make counsel available to indigent defendants at all critical stages of the criminal prosecution. If the defendant cannot afford to hire a private attorney, the court will appoint the Department of Public Advocacy to represent them. The defendant must fill out the AOC-350 Financial Statement, Affidavit of Indigency, and Request for Counsel prior to the appointment of the DPA.
While the Miranda Rights provide the accused with certain basic protections, like all rights, they can be waived. A waiver can be as subtle as continuing to discuss your case with law enforcement without specifically invoking your rights, and therefore, it is normally in your best interest to specifically invoke your Miranda Rights instead of continuing to answer law enforcement questioning. Before waiving your rights contact our office to consult with our attorneys about your case.