man being mirandized
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By Michael Arbeit
Founding Attorney

“You have the right to remain silent; If you don’t 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 to you…” If you have watched any TV in the past eighty years or so, you are familiar with this saying. Often cut before asking if the suspect understands these rights as they have been read, this has almost become synonymous with an arrest in our culture. That said, while most know what the words are, few know what they mean. In this article, we will discuss what Miranda warnings are and dispel several common myths surrounding them.

What Are Miranda Rights?

The United States grants its citizens a series of rights and liberties. Distinguishing between the two terms is not really all that important but, since political scientists frequently do, a right is a law that ensures that everyone is treated the same. Think Voter Rights Act, whereas a liberty is something that the government is forbidden from taking away. To confuse things more, civil liberties are, for the most part, conveyed in the Bill of Rights. When lawyers talk about your rights they are most often talking about your civil liberties and, therefore, when used here, rights refer to those. 

The rights you enjoy, especially when you are arrested for a crime, are even more confusing than contradictory terms for rights. In a world where everyone’s arrest story is not shared with the world by bystanders live-streaming to Facebook, people didn’t really have a good understanding of what the law actually was. This, of course, is not an excuse for breaking it. The Supreme Court reasoned, however, that even if you are accused of breaking a law, you ought to be able to exercise that law. To do that, you had to know what it is.

In a Supreme Court Case styled Miranda v. Arizona, the judges reasoned that requiring police officers to advise detainees about their fifth amendment rights is a necessary procedural safeguard to ensure that, should rights be waived, it is done knowingly and intelligently. Basically, the Court created a requirement that the police have to tell people they have rights if they want to interrogate them. 

In the years since Miranda, there have been plenty of different cases involving it. While the rights are still required, exactly what is necessary and when is a difficult question criminal defense attorneys are best situated to help you answer. This is especially true when we all see it so often in crime shows. Starting with Dragnet, Law and Order (and its numerous derivatives), CSI, and so many more all feature the iconic scene of the bad guy getting cuffed while officers repeat the classic phrase. With so many renditions of the scene, it is unsurprising that so many myths about Miranda persist. 


  1. You must be read Miranda for your arrest to be valid – The story goes like this, a man is arrested mid-robbery and when he meets with his defense lawyer for the first time he says, “They didn’t read me my rights; they have to throw it out.” Unfortunately, the case does not need to be thrown out. When it comes down to it, Miranda needs to only be read before a custodial interrogation. Custodial means that you have been arrested, and an interrogation is when the police are asking you questions to try to gather information related to a crime you have committed. If the police don’t ask you questions, they don’t need to Mirandize you. 
  2. No Problem, I just will sit there silently – Many criminal defendants think that because they have the right to remain silent, they should just sit there without saying a word. This is a bad idea for several reasons. First, police officers receive training rooted in psychological techniques that assist them in convincing people to talk. Few people can resist the temptation to say something and, as the warning goes, anything you say can and will be used against you. Second, this extends to things you don’t say as well. Just because you are silent, that does not mean that the officers cannot testify about you, the scary guy who sat there for hours silently as we discussed the horrific crime. Sitting silently does not protect you against anything and, really, is not what the fifth amendment says or has been interpreted to mean. 
  3. The rights are automatic – Okay, so if you can remain silent but remaining silent is bad, how do you get these rights to help you anyway? The Fifth Amendment rights covered in Miranda must be invoked. People seeking to avail themselves of a right have to do something to get that right. This is really counterintuitive but, once you learn how, it is straightforward. To invoke your right to remain silent, you must say that you want to invoke your right to remain silent or something similar to that. “I don’t want to answer any questions” is a good way of doing this. Failing to do make an affirmative statement like this lets the police continue the interrogation.
  4. If I ask if I need a lawyer, I am safe – In the above myth, we talked about how you have to affirmatively invoke your rights. Mentioning a lawyer or asking if you require one is not an affirmative invocation of your rights. Once again, police have training. They know the things to say and do to ensure that your question about a right does not look like an invocation of that right. Frequently the question gets the response “I don’t know if you are guilty, you sure need a lawyer” or “I’m just trying to help you, but there’s nothing I can do to help you once we get lawyers involved.” It is crucially important that, at the point that you are sitting in an interrogation room and are asked questions, you remember to say “I do not want to answer any questions and I want a lawyer.” Invoke those rights because at the point that the police are arresting people they are not looking to do anyone any favors.
  5. My friend wasn’t Mirandized, so they can’t testify against me – The rights conveyed under the Fifth Amendment are a personal thing. After all, the warning goes, “You have the right to remain silent” and the Amendment says you have the right not to incriminate yourself. Unfortunately, if the police fail to follow the procedure with your friend, they may not be able to use their statements against them, but they certainly can use those statements against someone else.
  6. If I confess, then there is nothing that can be done – Statements made to the police, when you are in custody, are suppressible if a person has not been advised of their rights. Suppose you are arrested for stealing a car, and you confess under interrogation. If you were not Mirandized, your lawyer can put a motion in, asking the court to keep the government from using that confession at trial. The cool things about this are that the government must prove that they gave you your Miranda warnings, and the fruit of the poisonous tree doctrine will keep any other evidence discovered because of your confession out. Did you tell the police where the car was and, in it, they found a pound of meth with your fingerprints on it? Not to worry, the drug charge you have as a result of your confession is out.
  7. Anything I say is excludable until I am Mirandized – Nope. Only statements made in interrogations are going to fall into this category. The Court has discussed spontaneous utterances, when people just say things without being asked, and concluded that they are admissible. If, when arrested, the bad guy says, “You got me, and I would have gotten away with it if it weren’t for you pesky kids,” that statement can come in at trial. The logic is that this was not part of the police evidence-gathering operation. On the flip side, officers who create circumstances to try to compel people to spontaneously utter confessions are a trick that will be suppressible. A person who tells the officers where the bodies are buried when they are in the police car is not a spontaneous utterance if the officers sat in the front talking about how they just wish the dead people could have a proper burial. The guilt trip tactic does require the warnings to be read. 
  8. I’m Innocent (or clever enough) so I don’t have any problem answering questions – Whether you feel you have nothing to hide or believe that you are intelligent enough to lie your way out of a situation, don’t. At the point that the police have brought you into custody, they are trying to do one thing: get a confession. A close second prize is collecting statements that make you look bad in court later. Interrogations are not about the truth, as the police are expressly permitted to, and often do, lie. It is always best that you exercise your rights. It is not worth gambling with your future to try to play the interrogation game. 


Hopefully, you no longer fall victim to the above myths and, should you ever find yourself in an interrogation, you are more prepared. One thing to consider is who you will call when you invoke your right to counsel. Some attorneys, like Michael Arbeit, are available 24/7. While the interrogation may come to a stop when you are given that jailhouse phone call, your criminal case has just begun. Bringing an experienced lawyer onboard can help you win your case and reassure you that not answering questions was, absolutely, the right thing to do. 

About the Author
Michael A. Arbeit, P.C. is devoted to all Criminal Defense and  Traffic related matters.  Michael practices primarily in the Criminal and County (Supreme) Courts in Nassau County, Suffolk County, Queens County, Kings County, New York County and the Bronx County.  Michael is also licensed to practice law in the Federal Courts of the Eastern District of New York (EDNY) and the Southern District of New York (SDNY).