Best Way to Exercise Your Miranda Rights
Question: What is the best way to exercise my Miranda Rights after being read the Miranda Warning?
Answer: In many instances during what we call an interrogation, law enforcement will either audiotape the questioning or even videotape the questioning. And the best way to exercise one’s Miranda Rights is to unequivocally tell the officer during an investigation that they will not and do not intend to speak with them at all about the issue that they’re there to investigate. And this is, by far, the biggest area when it comes to Miranda Warnings and suppression and the exclusionary rule. Because what you will see is someone will be read their Miranda Warnings and they won’t use critical language like, “I am not talking to you anymore. Either go get a warrant or whatever it is that you need to do to further your investigation.” Instead, we get questions where someone is read the Miranda Warning and then the individual may say, “Well, what do you think?” They bounce it back to the officer.
So there’s not this digging your feet in the sand to say, “I’m definitely not speaking with you.” It’s called wavering, vacillating, whether or not they’re truly invoking the Miranda Rights. They basically will say, “Well, I think I want to talk,” or “Oh, okay.” And so that’s what we see more than any other time, that’s where we see issues come up and that’s where we make arguments. What ends up happening 98% of the times in those situations, if they do get some evidence, they turn around and end up getting arrested or they get that evidence to be used against them, and then we have to go back and say, “Okay, well let’s back it up a little bit. Let’s see, after you were read Miranda, did you truly invoke or were you on the fence?” And that’s ultimately for a judge to determine in a motion to suppress scenario.
