Most people in Pennsylvania have heard of the Miranda warning that is based upon a person's right against self-incrimination as found in the 5th Amendment to the U.S. Constitution. They may even think they know all about it after watching police routinely administer the warning on TV shows when a person is being arrested. However, the reality is that the Miranda warning, like any court ruling or law, has unique nuances that do not always make its application black and white.
As with numerous things in the law, there are many gray areas. While most people automatically associate the issuance of a Miranda warning with a person being arrested, that is simply a common misconception. The warning is required to be given when a suspect is subjected to a "custodial interrogation." The term custody does not necessarily mean arrest. A person can be deemed in "custody" for Miranda purposes even if there are no handcuffs and the person is not seated in the back of a police cruiser. The term "interrogation" means any statement or question from an officer that is reasonably likely to elicit an incriminating response.
The right against self-incrimination applies to all types of crimes, from relatively minor ones like underage drinking and public drunkenness, and the moderate charges like DUI and drug possession, to more severe charges like possession with intent to deliver drugs and sexual assault.
What does the Miranda warning do?
The Miranda warning is a basic warning to a person that he or she has the right to remain silent and the right to have an attorney present. Again, it must be emphasized that Miranda rights are triggered when a suspect is subject to a custodial interrogation. A normal traffic stop is not a custodial interrogation, so a person does not actually have a right to an attorney in such a situation. That does not mean that the person must answer most police questions. To the contrary, the person must provide the police with basic identification information like name, address, and date of birth, but that is all. For example, during a roadside DUI stop, the police will often ask a driver where he or she is coming from and how many drinks have been consumed. The suspect is not technically in custody, so Miranda warnings are not required, but anything that the suspect says can and will be used against him or her in the future. The driver should not answer such questions, and he has a clear right to forgo answering those questions.
Police coercion during questioning
Police are permitted by law to use dishonest, deceptive, and even semi-coercive tactics in an effort to convince a suspect to answer questions. A common statement from the police to a suspect is "if you didn't do anything wrong, then why won't you answer any questions." The suspect then feels compelled or coerced into answering questions as a sign of innocence, and it is generally a very effective tactic because a suspect wants to tell his or her side of the story. Almost every suspect wants to explain to the officer what happened. Often, the more severe the crime, such as a sexual assault, the stronger the desire in the suspect to tell the officer that the alleged conduct did not happen.
Another tactic used by the police is to deceive the suspect about the status of the investigation. The police will tell a suspect that someone else involved in the case has already or may soon cooperate with the police, and that the other person is going to provide incriminating information about the suspect. If that other person talks first, he or she will get consideration from the prosecutor. Basically, the first one to talk gets the best deal. The police statements to the suspect can be an outright lie, and the courts have stated that the deceptive tactic used to garner incriminating information is lawful. While a person has the right to remain silent, the police are permitted to use dishonest tactics to convince a person to give up that right.
How can a person invoke the Miranda warning?
The U.S. Supreme Court has issued various opinions over the years that have limited the effectiveness and applicability of the Miranda decision. Simply remaining silent and refusing to answer questions is not sufficient. In order to exercise the full ability of the 5th Amendment right against self-incrimination, a suspect must overtly or expressly request it. Saying that "maybe I should talk to a lawyer" or that "I am not sure if I should answer questions" is not sufficient. The suspect should say that "I do not want to answer questions" and that "I want a lawyer." Even if the person is not subjected to a custodial interrogation so that Miranda is not technically triggered, the person should still express his or her desire to remain silent.
Exercise the right to remain silent and talk to a lawyer
As noted above, there are few things in the law that are black and white. Almost everything is in shades of gray, and most people do not truly understand how the law works. Before talking to the police, a suspect should remain silent and talk to a lawyer. Do not fall for the "if you are innocent, you don't need a lawyer" statement from the police. An experienced criminal defense lawyer can review the case, possibly talk with the officer, and determine whether or not a statement should be provided to law enforcement. In looking for an attorney, a person should consider the following factors when hiring a criminal defense attorney, such as experience, client testimonials, peer reviews, and professional awards.