Fewer Consequences for the Failure to Mirandize

August 20, 2022

By Keffer Hirschauer LLP

Fewer Consequences for the Failure to Mirandize 

You have the right to remain silent. This phrase, part of the Miranda warning read to someone before being questioned while detained, is familiar to most people due to the popularity of its use on television. An incorrect Miranda warning or the failure to Mirandize a suspect carries significant legal consequences, including the potential to invalidate an arrest or the evidence obtained from the interrogation. There were also civil remedies a detainee could seek in a civil case for the failure to properly Mirandize. However, in 2022, the Supreme Court of the United States eliminated the right to recover compensation when police violate Miranda rights. 

An improper—or missing—Miranda warning leaves a detainee vulnerable to questionable police interrogation tactics without the protection of legal advice from a criminal defense attorney. If you were interrogated without the benefit of a Miranda warning, an experienced Indiana criminal defense attorney from Keffer Hirschauer LLP can help you fight the admission of evidence obtained as a result of that questioning. However, your right to compensatory damages for the failure to Mirandize is no longer a reality. 

The Supreme Court’s Reversal on Failure to Mirandize 

Nearly 60 years after establishing Miranda rights, the Supreme Court dealt a blow to defendants’ legal recourse when the police violate their rights. In Vega v. Tekoh, the Supreme Court held that police officers cannot be held liable in a civil lawsuit for improperly administering or failing to administer Miranda rights to a detainee. This turnabout is a game-changer for criminal defendants, removing a major disincentive for police who might otherwise skip giving the advisement. 

The Miranda warning advises a detainee or arrestee of the right to remain silent and the right to an attorney. The Court reached its decision primarily because a Miranda warning is not considered a constitutional right but, instead, a constitutional rule. Since it is not a right that is protected by the Constitution, the Court ruled that suspects cannot sue police for a violation of their civil rights when the Miranda warning was not issued or was issued improperly. 

In recrafting a longstanding rule regarding Miranda warnings, the Court relied on the doctrine of qualified immunity, which protects police, correctional officers, border agents, and other government officials from facing liability for their misconduct. Law enforcement officials have immense powers, including detaining, questioning, and arresting people. Personal liability for civil damages resulting from a violation of an arrestee’s constitutional rights served as a significant incentive to respect constitutional rights. Unfortunately, the new rule from Vega eliminates personal consequences for the offending officer.  

What Are the Miranda Rights? 

The Miranda warning comes from the Court’s opinion in Miranda v. Arizona. There, Miranda was arrested and questioned about a kidnapping and rape without first giving him notice of his right to remain silent and his right to an attorney during questioning. The interrogation resulted in his confession, and he was ultimately convicted of kidnapping and rape. On appeal, the Court held that a clear advisement was necessary to safeguard those rights. In other words, if the police wish to question a suspect in custody, they must Mirandize them. 

While there is no exact script for Miranda rights, they must convey several points of information to the suspect. Most readings of Miranda rights include the following statements: 

  • 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 

What Constitutes Police Custody? 

A person who does not have the freedom to leave the police is deemed to be in custody. The test is whether a reasonable person in the individual’s situation would feel free to leave the questioning. The location of the questioning does not have to be at a police station or in a police car. Rather, it could be any place where the person feels that the freedom to leave is unavailable.  

Whether a person would feel free to leave depends not only on physical restraints but also on psychological restrictions. Factors to consider when determining if the suspect was in custody include: 

  • If the officer is armed or if there is a group of officers in the room 
  • If the individual is alone without friends or family members 
  • If the conversation is in a police station or closed room rather than the individual’s home or the street 
  • Whether the individual is free to leave after the conversation ends 

The officer’s behavior is another important factor used in determining whether an individual is considered to be in custody. If the officer is aggressive or threatening to the suspect, has a lot of questions, or uses physical restraints, including a locked door, then the suspect likely would not feel free to leave. 

Custody does not require a formal arrest, and many situations can qualify as a custodial interrogation. Indiana criminal defense attorneys can help protect your rights during and after being held and interrogated by police.  

Defining the Right to Remain Silent 

When the police arrest and question you, there is no requirement to respond to their questioning. Regardless of what the police tell you, you have no duty to answer their questions beyond basic identifying information, including: 

  • Name 
  • Age 
  • Address 

Exercising your right to remain silent does not extend to the collection of physical evidence. Your right to remain silent does not prevent the police from searching your person for any weapons. Moreover, you may waive your right to remain silent by stating it plainly or by voluntarily answering the officer’s questions.  

The right to remain silent comes from the Fifth Amendment, which provides a right to protection against self-incrimination. Self-incrimination includes providing information that admits to or suggests your involvement in a crime or exposes you to prosecution. This protection against self-incrimination includes the refusal to answer questions or make potentially incriminating statements.  

The Use of a Defendant’s Statements after the Failure to Mirandize 

Once you receive a Miranda warning, the prosecutor may use anything you said to the police against you in a criminal trial. However, if you invoked your right to remain silent, the prosecutor may not use that as evidence of wrongdoing. In other words, the prosecutor cannot introduce to the court your refusal to respond to questioning as evidence of guilt.  

If you requested but were denied counsel while in custody and proceeded to answer questions in a custodial interrogation, the prosecutor might try to offer what you said as evidence at trial. Your criminal defense attorney would likely object to the admission of that evidence, but you would have the burden of proving that it is inadmissible.  

The best course is to have an attorney with you when undergoing police questioning. The attorney can protect your rights and prevent you from inadvertently making an incriminating statement. Should you face police questioning, request an Indiana criminal defense lawyer immediately.  

The Right to an Attorney: What It Really Means 

All people who face police questioning have the right to an attorney. However, it is important to understand that this is a right the suspect must unequivocally invoke by clearly requesting an attorney. Phrases such as “I want an attorney” will effectively invoke the right. However, stating that you think you need an attorney does not protect your right or directly express your request for legal representation.  

Once you invoke the right to an attorney, the police must stop all questioning until your attorney is present. Once you state your desire for an attorney, you should immediately stop talking and refuse to answer any further questions until you’ve had a chance to speak with counsel.  

Fortunately, the law acknowledges that not all suspects can afford an attorney. A suspect who requests an attorney but cannot afford one has the right to have an attorney appointed before the police commence or resume questioning.  

The right to an attorney is found in the Sixth Amendment to the Constitution. The right begins when the police start questioning. Contact an Indiana criminal defense lawyer at Keffer Hirschauer LLP immediately if you are about to be subject to police questioning.  

What It Means to Waive Miranda Rights 

If you fail to clearly invoke the right to remain silent, the police can continue and repeat questioning. However, even after properly invoked, you may waive your Miranda rights inadvertently. Voluntarily making a statement or answering questions after invoking the right constitutes a waiver of the right to remain silent, meaning that you have effectively erased your invocation of the right to remain silent. 

The Consequences of Failure to Mirandize 

Before the Supreme Court’s ruling in Vega, when there was a failure to Mirandize, a suspect could use the failure to argue against the admission of evidence obtained during that custodial interrogation. They could also seek civil damages against the officer or officers who failed to properly Mirandize or respect the invocation of rights.  

Following the Supreme Court’s decision in Vega, you no longer have a civil remedy against the offending officers, although you can still argue against the admission of evidence improperly obtained in the interrogation. Specifically, the exclusionary rule renders any statement made by the suspect following a failure to Mirandize generally inadmissible in trial. Contact an Indiana criminal defense lawyer to better understand whether you received a proper Miranda warning and how the failure to Mirandize could impact your case.  

Excluding Confessions and Evidence after the Failure to Mirandize 

Information gleaned from a custodial interrogation despite a failure to properly Mirandize is not automatically inadmissible at trial. To prevent such statements from being used at trial, you must file a motion asking the court to prohibit such statements from being introduced against you.  

It is important to understand that failure to properly Mirandize does not automatically result in the dismissal of the case against you. That said, if the only evidence against you arises from the custodial interrogation for which law enforcement did not properly advise you of your Miranda rights, you could have grounds to request dismissal of the case. The case would likely proceed if there is other evidence beyond the illegally obtained confession or evidence.  

There are several exceptions to the Miranda rule, and the prosecutor may use the evidence in these instances. These situations include: 

  • For impeachment, meaning to attack the defendant’s credibility 
  • For the sentencing stage of the trial, after the defendant is found guilty 
  • For questioning that took place in a dangerous situation, such as when police officers question suspects about weapons without providing Miranda warnings 

An experienced Indiana criminal defense attorney from Keffer Hirschauer LLP will review the facts in your case and prepare the best argument for excluding evidence obtained during a custodial interrogation.  

Our Indiana Criminal Defense Attorneys Help Protect Your Miranda Rights 

Although the Supreme Court has eliminated a major incentive for law enforcement officers to respect your rights, the rights themselves remain: you have the right to an attorney advise you during a custodial interrogation, the right to remain silent, and the right to be advised of these rights. An Indiana criminal defense attorney from Keffer Hirschauer LLP attorney will represent you during questioning and evaluate your case for any possible failure to Mirandize properly. For a free consultation to learn how we can help you, call us at (317) 857-0160 or complete our online contact form. 

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