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What are Miranda rights, and when do they kick in?

Question: My son often runs afoul of the law. He’s a good kid, but is having a hard time lately. The cops will come knocking at my door, looking for him. I try to be polite, but they can be pretty persistent and I am wondering a couple of things: Do I have to talk to them, and does he? I’ve heard you shouldn’t talk to an officer without a lawyer present, but can you tell me more about what that means?

Answer: The U.S. Constitution provides comprehensive protections for all of us. The two things you are referring to—whether you must speak with law enforcement and whether an attorney should be present—are covered under the Fifth and Sixth Amendments. Let’s take a look at each.

The  Fifth Amendment guarantees both you and your son the right not to talk with a police officer under any circumstances. Not everyone, however, is familiar with that right. As a consequence, in 1966, the U.S. Supreme Court (SCOTUS) laid out very specific requirements that law enforcement must use when arresting an individual. The case that SCOTUS used to develop these guidelines was called Miranda v. Arizona, thus the name, Miranda rights.

Mirada rights are: The right to remain silent, and a warning that anything you say can be used against you; the right to an attorney and appointment of one by the court if you are unable to afford one.

These rights, however, don’t just kick in when you are arrested. They exist all the time, so when cops comes knocking at your door, politely tell them you will not talk to them. Your son should do the same whenever a police officer attempts to question him.
Your Sixth Amendment right guarantees you legal counsel if you have been arrested. While a court will not appoint an attorney as a preventative measure, you should also tell the officer that you will not speak to him without your attorney.

By telling law enforcement that you will not talk with them without an attorney present, you invoke both rights and the officer must then cease all questioning. If law enforcement continues to persist with questioning, contact a criminal defense attorney immediately.



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Thomas G. Fallis, P.A.
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