The Miranda rights we know today come from a US Supreme Court case Miranda v. Arizona. In this case, the Supreme Court declared that there must be certain safeguards in place before law enforcement officials can use statements made by the accused individual while he is in custody.
What Your Miranda Rights Are
The procedural safeguards are these: prior to any questioning while in custody, the accused individual must be warned that (1) the accused has the right to remain silent; (2) any statements he makes will be used as evidence against him; (3) he has the right to the presence of an attorney; (4) if he can’t afford an attorney, one will be appointed.
When Miranda Applies
Many mistakenly believe that a defendant must be read their Miranda rights immediately upon arrest. This is not the case. Two things must happen in order for Miranda to apply:
First, the defendant must be in custody. A defendant is in custody if he is deprived of his freedom of action in any significant way. If a defendant reasonably believes he is not free to leave, the defendant is in custody.
Second, there must be an interrogation. An interrogation occurs when questioning is initiated by law enforcement officers that is calculated to elicit an incriminating response from the defendant.
Waiving Your Miranda Rights
A defendant may waive their Miranda rights, but the law insists that the waiver must be made voluntarily, knowingly, and intelligently. If a law enforcement officer reads you your Miranda rights, and asks if you understand them, and afterwards you engage in a conversation with the officer, or answer the officer’s questions, you have effectively waived your Miranda rights.
Here’s an example of how someone may waive their Miranda rights:
Officer: “You have the right to remain silent. Any statements you make will be used as evidence against you in court. You have the right to have an attorney present at all times. If you can’t afford an attorney, one will be appointed. Do you understand your rights?”
Officer: Are you ready to have a conversation about why you were in possession of heroin?
Defendant: That wasn’t mine.
Defendant has effectively waived his Miranda rights by answering the officer’s questions.
Once the defendant has waived his Miranda rights, or once the defendant has made some statements, he can nevertheless reassert his right to remain silent or his right to consult with an attorney. The defendant would simply need to say, “I now want to remain silent and I want an attorney,” or “I don’t want to answer any more questions until I have an attorney here.”