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There probably isn’t a more popular question posed by clients than can I get my charge dismissed if the police didn’t read me my Miranda Rights? The answer to this question is more complex than a client anticipates, and this article is intended to give an overview of this area of law for you. If you were arrested by police without having your rights read to you, you definitely want to consult with a Georgia criminal defense lawyer with experience in Miranda law. A talented criminal defense attorney will have the skill to ensure you constitutional right against self-incrimination and right to an attorney is fully protected. The attorneys at our firm have extensive experience challenging police questioning and arrests conducted in violation of Miranda warnings.

Overview of Miranda Law

Miranda Rights are founded in the Fifth Amendments against self-incrimination and the Sixth Amendment’s right to counsel, as stated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966).

Before the police interrogate a suspect in custody, the suspect must be warned that (1) the suspect has the right to remain silent, (2) the suspect's statements may be used against him at trial, (3) the suspect has the right to the presence of an attorney during questioning, and (4) if the suspect cannot afford an attorney, one will be appointed. The police do not have to tell the suspect the nature of the crimes they wish to ask him about before asking him if he wishes to waive his rights and speak to them. Statements by the police that contradict or undermine Miranda warnings may make a subsequent waiver and confession invalid.[1]

If the police get a custodial, self-incriminating statement from the accused before Miranda warnings and then give the accused the Miranda warning, get a waiver, and ask him to repeat his confession, this is an inadmissible application of the “two step” interrogation if the police deliberately used this approach to circumvent Miranda. “Custody is defined as when a reasonable person would not feel free to leave. “Interrogation” is defined as any statement or action by law enforcement, while an individual is in custody, which entices a person to make an incriminating statement.

When the Police Must Read Your Miranda Rights

It is important to note that police are only required to Mirandize a suspect if they interrogate that person under custody. “Custody” and “Interrogation” are two legal definitions that are the hallmark on whether your Miranda rights must be given. Arrests can occur without the Miranda Warning being given. If the police later decide to interrogate the suspect, the warning must be given at that time. Their vigilance to this rule means less chance of a case being overturned in court due to poor procedure on their part.

Miranda only applies to questioning while the suspect is in custody. A person is in custody if she is deprived of her freedom in a significant way. The question whether a person is in custody should focus on what a reasonable person standing in the person's shoes would think is happening. If that reasonable person would believe, based on all the circumstances, including the actions and statements of the police, that she has been or is about to be arrested, then she is beginning to feel the coercive power of the State and it is time for the Miranda warnings. When a police officer first arrives at a crime or accident scene or makes first contact with a suspicious person or situation, the police are not placing everyone “in custody” even though no one is free to go until the police have sorted out what is going on. Likewise, when police are conducting a lawful search of a home, detaining the occupant for the safety of the officers during the search is not an arrest for Miranda purposes.

Temporary detention of a driver while an officer investigates possible DUI or other violations is not “custody.” Miranda warnings do not have to be given prior to conducting field sobriety or breath tests even if the driver is “in custody.”

In the Interrogation element Miranda only applies to interrogations by the police or other authorities with law enforcement duties. Statements that the defendant volunteers without questioning or prompting are not covered by Miranda. While the issue of whether the defendant was in custody is viewed from the standpoint of what the defendant would reasonably believe, the issue of whether there was an interrogation is viewed from the standpoint of what the police would reasonably believe they were doing since the purpose of the interrogation requirement is to limit Miranda to situations in which the police are actively seeking information from the defendant related to the investigation.

A defendant's waiver of his Miranda rights must be knowing and voluntary but an express waiver is not required if the defendant's words and conduct clearly indicate that he is waiving his rights.

The person arrested must still answer questions asked about their name, age, address, etc. They can be searched in order to protect the police officer. Also, a confession given before a suspect has been read the Miranda Warning may find that confession entered as evidence in court.

If you have been Mirandized and you waive your rights, meaning you wish to speak to police freely without an attorney present, you can change your mind at any time and ‘plead the fifth,’ meaning you no longer wish to answer questions, or that you have changed your mind and wish to have an attorney present after all.

Invoking Your Miranda Rights

If the individual indicates in any manner, at any time prior to or during questioning, that he or she wishes to remain silent, the interrogation must cease. If the individual states that he or she wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him or her present during any subsequent questioning. It is important to invoke your rights clearly and unequivocally, meaning you should state that it is your intention to invoke your Miranda Rights. The Court will have to determine as a matter of fact if you really invoked your Miranda Rights, and it is much easier to prove so if you clearly state to the officer or law enforcement that you are invoking your Miranda Rights.

Once a defendant has been read and waived his Miranda rights, other officers who later question him regarding the same offense need not renew the Miranda warnings. But once substantial time has passed, the defendant should be reminded of his rights prior to subsequent interrogations.

If at any time during questioning, before or after being read his Miranda rights, the defendant unambiguously declares that he wishes to invoke his right to remain silent or right to counsel, all questioning must cease immediately and the police may renew questioning only in two situations. First, if the defendant voluntarily reinitiates communication, the police may resume questioning after giving the defendant fresh Miranda warnings. Second, after a break in Miranda custody of at least two weeks, the police may reapproach the defendant, give fresh Miranda warnings, and see if the defendant is willing to waive his rights and speak to them.

Even if the defendant at some point has invoked the right to counsel, he can subsequently waive that right and the waiver need not have been discussed with counsel. Absent a subsequent waiver, when a defendant has invoked his right to counsel, any further efforts by the police or their agents to acquire incriminating statements from the defendant must be in the presence of counsel.

Seeking a Lawyer for your Miranda Rights

Regardless, in custody vs. not in custody and interrogation vs. non-interrogation is a fact sensitive determination. Accordingly, it is wise to ask a lawyer about this distinction in a case where a statement to the police was made. A lawyer will be able to file a pre-trial motion in order for the Court to determine whether your statement was made in violation of your Miranda Rights. A hearing is usually required where the officer gives testimony concerning the circumstances and facts surrounding your statements to law enforcement and where the Judge will make credibility determinations, when determining if you should have been read your Miranda rights or if you waived your Miranda rights.

A lawyer will take into account any language barriers, the statements you made to invoke your Miranda Rights, if any coercion or forced was used, the time your Miranda Rights were read to you, the manner in which they were read to you, whether you requested a lawyer, whether you voiced your right to remain silent, and your intellectual capacity to do so.

[1] The post-arrest silence of the accused while in custody may not be used against him at trial. Doyle v. Ohio, 426 U.S. 610, 618, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976).

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