“I was arrested, but they never read me my rights”

“I wasn’t read my rights when I was arrested. Was the arrest legal?” “Can I be prosecuted if I was never read my rights?” This issue comes up often when people have their first contact with the police or are arrested. In fact, we are often asked questions related to this scenario after a client or their loved one has been arrested or charged with a crime. Here at Hofland and Tomsheck, we want to clear up any confusion related to the legality of reading ones rights as we fight to put unfortunate situations such as this behind clients or their loved ones.

When do the police have to read me my Miranda rights?

You have probably all watched a television program where the police take their suspect into custody. What do they always say? “You are being arrested for the Murder of Mr. Jones. You have the right to remain silent. Anything you say can and will be used against you. You have a right to an attorney…” In the world of television, the scene usually cuts and all of a sudden the lawyers are in Court with the suspect. In the real world, the workings of a person’s rights such as these, called Miranda rights, are much different. The name Miranda rights, comes from the 1966 United States Supreme Court case of Miranda vs. Arizona. In that decision, the Supreme Court ruled that, prior to custodial interrogation a suspect must be given the following warnings: 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 have an attorney present during questioning and if you cannot afford an attorney, one will be provided for you at no expense. The warnings are referred to as your Miranda rights. The Supreme Court made this decision based on the 5th Amendment of the United States Constitution, and this rule applied to all US States, including Nevada, under the due process clause of the 14th Amendment. Unlike on television, these rights are almost never read or recited to a suspect at the time he is arrested and the cuffs are placed on their wrists. This is a confusing point because people think that you must be read your Miranda rights right away.

Under the law, Miranda Rights only need to be read during “custodial interrogation.” This means that the police must provide you with your rights if you are in custody, meaning not free to leave AND being interrogated, meaning they are asking questions designed to elicit a testimonial response. This means that if the police tell a suspect that he or she is free to leave at any time that Miranda rights may not have to be read for a Defendant’s statement to be admissible against the person. While many people think that the police MUST read you your rights at every contact, the law is actually quite different. If you are free to leave and being asked questions, there is no reason to expect the officer to read you your Miranda Right because you are not currently in police custody. If however, the police have detained you and you are not free to leave, you are “in custody” and law enforcement must provide you with your Miranda rights prior to your statement being admissible in a Court proceeding.

In future Blog posts we will discuss what the ramifications are of not providing adequate Miranda rights and how that can become important in defending your case or the case of someone you care about.

If you have been arrested, or have questions about your rights, you should contact an experienced Las Vegas Criminal Defense Attorney right away. At the law firm of Hofland & Tomsheck, we have handled countless cases such as these. In many cases, we can get the charges against you drastically reduced or dismissed altogether. Attorney Josh Tomsheck is a Nationally Board Certified Criminal Defense Attorney who has been recognized by the Nevada State Bar as a Specialist in Criminal Trial law. We look forward to helping you put these unfortunate situations behind you and helping you get back to your life. Contact us today.