Most anyone who watches television has heard a Miranda warning being given and a large percentage of the population is able to recite the Miranda warning by heart:
"You have the right to remain silent. Should you give up that right, anything you say may be used against you in a Court of law. You have the right to an attorney. Should you be unable to afford an attorney, one will be provided at no cost to you."
However, do you know why you have these rights and how or when to exercise them? As it turns out, very few people do.
Miranda v Arizona
In 1963, Ernesto Miranda was convicted of kidnapping and rape, after signing a written confession. The Supreme Court of Arizona upheld Miranda's conviction. In 1966, the U.S. Supreme Court reversed that decision and held that the typed-in paragraph at the top of Miranda's signed confession stating that he made it with full knowledge of his legal rights was not sufficient to show that he made a knowing and intelligent waiver of his Constitutional rights.
In this landmark decision, the Court stated that an individual, "must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has a right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." Hence, the "Miranda warning" was born.
When and How to Exercise your Miranda Rights
Your right to remain silent always exists and you do not need to wait until you have been advised of your Miranda rights in order to exercise them. Before you have been advised of your Miranda rights, you may exercise them by advising the officer(s) that you do not wish to speak with him/her/them and hanging up the phone, shutting the door, or leaving the police station. After you have been advised of your Miranda rights, you may exercise them by advising the officer(s) that you have nothing further to say, and wish to speak with an attorney.
When you ask for an attorney, you must do so in a very precise way. Use no uncertain terms. "I have nothing further to say until I speak with my attorney" is a clear way of exercising this right. "Do you think I need a lawyer?" is not.
The rights to remain silent and to have an attorney represent you are rights that every American should know how they got and how to exercise. These rights are here to protect you and you should know how to avail yourself of them should the need ever arise.
Shelley is a paralegal and freelance writer. She and owns http://www.virtuallylegal.net/ where she writes about the law, our rights as citizens, and Indiana law.
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