The wording used when a person is read the Miranda Warning, also known as being ‘Mirandized,’ is clear and direct:
“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 an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”
Some police departments in Indiana, New Jersey, Nevada, Oklahoma, and Alaska add the following sentence:
“We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court.”
The suspect must give a clear, affirmative answer to this question. Silence is not acceptable as waiving these rights because the arrestee may not understand or may not speak English as his or her first language. If the Miranda Warning must be translated to the suspect, that translation is usually recorded.
It is important to note that police are only required to Mirandize a suspect if they intend to interrogate that person under custody. 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.
If public safety is an issue, questions may be asked without the defendant being Mirandized, and any evidence obtained may be used against the suspect under these circumstances. The Miranda Warning is all about questioning and being protected from self-incrimination under the Fifth Amendment, not being arrested.
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.
In some states, juveniles have the right to remain silent without his or her parent or guardian present.
US military branches provide for the right against self-incrimination by providing a form that informs the suspect of the charges and their rights. They are required to sign the form.
Contributing criminal defense attorney authors:
• Bubba Head (Georgia)
• David Haenel (Florida)
• Patrick Barone (Michigan)
• Bruce Edge (Oklahoma)
• Chad Lewin (California)
• Ned Barnett (Texas)