What are Miranda rights?

Police encounters that end in arrest should include a reading of your Miranda rights.  You are probably familiar with the term or recognize the litany of rights rattled off on a typical TV crime drama, “You have the right to remain silent, anything you say can and will be used against you, you have the right to an attorney, if you cannot afford an attorney one will be appointed for you.”  But beyond this, you may not know what Miranda rights really are, when they should be given, and what it means if they aren’t.

The name Miranda comes from a Supreme Court case called Miranda v. Arizona, but the rights themselves are actually derived from the Fifth Amendment right to be free from self-incrimination and the Sixth Amendment right to counsel.

Miranda v. Arizona

In this case, named for one of four defendants the Supreme Court consolidated to answer the same question of law, involved situations where suspects were detained and interrogated by law enforcement without being notified of their rights.  In each case, all the suspects admitted to the crimes charged without knowing they could remain silent and have counsel present.  Miranda, for instance, was an immigrant and not familiar with the law or the English language enough to protect him from police intimidation and coercion.

What came out of this case are the Miranda warnings you are familiar with and some basic requirements that guide citizens and law enforcement as to when these rights apply.  First, in order for Miranda to apply you must be in custody and second, were you interrogated by a government actor (law enforcement).  Being in custody means that a reasonable person would not feel free to leave.  Interrogation is questioning initiated by law enforcement after being taken into custody.  If you meet these requirements and have been notified of your rights, the law allows you to waive these rights, which must also meet certain requirements in order to be valid.


Once given your Miranda rights, you can waive them.  The test for a valid waiver is that it was done knowingly, voluntarily, and intelligently.  You must understand what you are giving up and the consequences that will follow.  What is critical about waiver principles as that you don’t have to expressly waive them, they can be implied by your actions.

What cannot be inferred is when you want to invoke your rights.  If you want to remain silent or have an attorney present, you have to communicate this unambiguously.  But that doesn’t mean you can’t then waive your rights again.  Yes, it can get complicated.  Think of this process as a careful balancing act between protecting your rights and allowing police to do their jobs.

So what happens if you invoke your right to remain silent, but then end up talking to police again?  The test here is whether you or police initiated further communication.  It is unlawful for police to begin questioning you again once you have terminated the interrogation.  But if you start talking first, police will re-Mirandize you and then you have deemed waived these rights thereafter.

Whatever your encounter with law enforcement, know that you have valuable rights provided by the Constitution and Illinois law.  Your best defense will be to seek the advice of a qualified Illinois Criminal Defense Attorney.

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