The Police Never Read My Rights and It May Not Matter.

Edward Palermo Suffolk County DWI lawyer

The Police Never Read My Rights and It May Not Matter.


The police never read my rights and it may not matter.

New clients often tell me the police never read their rights to them.  It perplexes clients when I explain that it may not matter at all. Clients often feel angry and want an explanation of why this fact does not lead to dismissal of their case!  One must consider the reason for the reading of the rights to understand whether a remedy for a client exists in any given case. The merits of the defendant’s complaint that rights were not read upon arrest turns on the nature of the police contact and the intentions of the prosecuting lawyer.

The “rights’ that people reference when asking this question are known as “Miranda Rights”.  Everyone has heard the basic Miranda rights, “you have the right to remain silent, anything you say can and will be used against you in a court of law.  You have the right to counsel of your choosing, etc., etc.  These rights flow from the landmark Supreme Court case of Miranda v. Arizona, 384 US 436 (1966).  In Miranda, the Supreme Court decided that people must be given the right to counsel and the right to remain silent when arrested and subject to questions by law enforcement .  Click here for a link to the wiki page for this landmark decision.

While the need to “Mirandize” is in full force and effect today, there is no blanket requirement that these Miranda Rights be read to every defendant.  The ultimate questions to ask are these:

  • 1.  Did the defendant make any incriminating statements or was any evidence discovered as a result of words or actions of the defendant?
  • 2.  If yes, was the defendant’s statement and or action made in response to police questioning?  and
  • 3.  Was the defendant “in custody” when the questioning occurred?

If the defendant makes an incriminating statement to the police in response to police questioning, while in custody and the prosecutor seeks to admit the statement against the defendant at trial, then yes, the police must have first given the defendant his Miranda rights.  If the Miranda rights are not read, in these circumstances, all statements would be suppressed.  The remedy to the defendant is suppression of not only the statements made but any further incriminating evidence that flows directly from the incriminating statements.  However, if any of the above-stated precedents are not present, there is no remedy.

For instance, if the defendant makes no incriminating statements there  is no additional harm or prejudice to the defendant and no remedy for police failure to read the Miranda rights.  Thus, when clients proclaim the police never read their rights,  I explain that it does not matter if no custodial questions lead to incriminating evidence against you.

Also, if the client did make an incriminating statement but it was either, while not in “custody” or if in custody, not in response to questions from police intended to gain an incriminating statement, once again, it does not matter that the rights were not read.  The issue of custody is not so cut and dry.  The question of what facts would lead to a determination that the client was in custody is murky and turns on whether, under the circumstances that existed at the time, would a reasonable person in the clients shoes have felt they were not free to leave.

What constitutes a statement induced by police questioning, which requires reading of rights first, as opposed to words the client just blurts out without prompting, is also a very fact specific determination.  The ultimate guidepost when considering this issues is voluntariness.  If the facts surrounding an arrest give rise to a finding of coercion, it is likely that statements attributed to a client will be suppressed EVEN IF THE CLIENT WAS PROPERLY MIRANDIZED.  If, however, the statements seem voluntary to the Judge and not subject to any police coercion or questioning, then the statements will most likely be admissible against the client at trial, even if the client was never Mirandized.

Always remember that when you are the subject of an investigation by the police or under arrest, the questions from police about the facts of investigation are INTENDED TO HAVE YOU INCRIMINATE YOURSELF.  Therefore, always request counsel immediately and NEVER answer questions about the subject of investigation and your potential involvement.

About the author:

Edward Palermo is a Suffolk County New York criminal and DWI attorney.  He has practiced criminal law for 20 years and is a member of the National Trial Lawyers Top 100.  He resides with his family on Long Island, New York.

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