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Miranda and Your Right to Remain Silent

Many of us are familiar with the term “Miranda rights”. Some of us can even recite all or at least some of the Miranda warnings from memory after hearing them countless times in television shows or movies.

You have the right to remain silent. If you give up the right to remain silent, anything you say can and will be used against you in court.

You have the right to speak with an attorney before any questioning.

If you desire to speak with an attorney and cannot afford one, one will be appointed for you.

Do you understand your rights?

Understanding your rights, do you want to talk to me about what happened?

Unfortunately most people do not truly understand their Miranda rights and what they actually mean to them when they are being interrogated or after they have been arrested.

Miranda rights came from the United States Supreme Court case of Miranda vs. Arizona along with three other companion cases. In the Miranda case, the defendant was arrested and interrogated by police for a couple hours. After the interrogation, Mr. Miranda made a full confession. He was later convicted in court after his own confession was used against him. For more information visit:

Miranda rights apply in a very limited situation only. In order for Miranda to apply, two things must happen: First, the subject must be in the “custody” of law enforcement. This means that the subject must not be free to leave if he or she wishes. For example, if a police officer calls you on the phone and asks you to come to the police station and answer a few questions, you are not under arrest and Miranda does not apply. By contrast, if you are running from a bank with a gun in your hand and the police stop you, handcuff you and place you in the back of a police car, you are under arrest. The custody must be by police, not store security or even school officials.

Secondly, the police must ask questions or make statements that are reasonably anticipated to gain incriminating responses. If a police officer arrests you and puts you in the back of police car and doesn’t say a word to you, but out of fear for your girlfriend being arrested you tell police that the ten pounds of marijuana the officer found in your car is all yours, Miranda does not apply. Likewise, if you are arrested with another person and you are both placed in the back of a police car, the recording of the two of you talking does not require Miranda warnings. However, if the officer pulls you over, smells marijuana, searches and finds the drugs and arrests you, places you in the back seat and he asks you where you were planning on selling the drugs, Miranda does apply.

Next, people often forget that although we enjoy the right to remain silent, we have no right to lie. And, as the warnings caution us, anything we say can and will be used against us in court. So, as I like to tell my clients, exercise your right to remain silent and if you absolutely, positively have to make statements to the police, tell the truth. Please remember that in most cases, the truth is not even a close second choice after remaining silent.

Understanding your rights under Miranda is not enough. We must not just understand our rights, but we must “invoke” our rights, or fully use them to our advantage. When the questions above are posed to you, the answer must not only be, “No, I do not wish to speak with you”, but we must go a step further and affirmatively invoke our right to an attorney. Thus, an appropriate response would be, “No, I want to talk to a lawyer”, or “No, I want to talk to my lawyer”, but either way, the request for counsel must be stated specifically.

In my next article I will talk in more detail about the right to a lawyer, where it comes from and what it means to you in the real world.

If you have questions about Miranda or have been arrested and have questions about your arrest, please call me: Attorney Jeffrey Vallens (818) 783-5700 or (888) 764-4340, email me at: or visit my sites: or

Jeffrey Vallens is a criminal defense attorney in Southern California. He has been practicing criminal and DUI defense for well over 15 years. This and any other article or information on his sites is for informational purposes only and should not be relied upon for legal advice. Please contact a lawyer directly for advice about any particular set of facts or circumstances.