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January 2, 2022 Criminal Law


By:  Michael Saul, Attorney

                                                                     MIRANDA WARNINGS

                   Confessions, Statements to the Police, Are the police a friend to the accused?

        Repeatedly we have clients consult with us after they have been arrested.  They tell us they made statements to the police.  The statements never help our clients, and often the statements severely hamper their defense.  We ask if they were read their Miranda warnings, often they say yes.  They tell us “I thought it would help me.”  I often wonder if our clients watch television, or movies, where the police always tell a suspect that “anything they say, can and will be used against them.”  Maybe people think television is not real life; maybe they think the police will help them.  However, television and the movies have it right.  The police are nice to suspects for one reason, which is for the suspect or the accused to think the police want to help them.  Our criminal justice system does not work like that.  Our system is based on the “burden of proof”.  That means that the police, the prosecution, must find the evidence and present it in court.  If the police need to act like your best friend for you to make a statement, then that is what they will do.  The suspect or the accused does not have to prove anything, or present any evidence.  When clients make statements to the police, they are giving the prosecution a head start with the burden of proof, a head start with the prosecutor proving her case.    

                                                                      MIRANDA V. ARIZONA

         This article is a brief summary of our Miranda rights.  Miranda outlined procedural safeguards to secure the Fifth Amendment’s privilege against self-incrimination.  What we call Miranda arises from the United States Supreme Court case of Miranda v. Arizona, 384 U.S. 436 (1966).  That case tells us when statements to law enforcement can and cannot be used against an accused.  Prior to any questioning the person must be warned that he/she has a right to remain silent, that any statement one makes can and will be used against him/her, that he/she has the right to consult with an attorney before speaking with the police and that he/she has the right to the presence of an attorney, either retained or appointed if the person cannot afford one.  The defendant can waive these rights provided the waiver is made voluntarily, knowingly and intelligently. 

          Miranda does not come into play unless the individual is in police custody and being questioned.  The U.S. Supreme Court in Miranda tells us that the Fifth (5th) Amendment to the U.S. Constitution applies in the courtroom as well as during police interrogations.  The 5th Amendment gives us the right not incriminate ourselves. 

          A custodial interrogation means that an accused is in custody or otherwise deprived of freedom of action in any significant way.  Of course, there are many court cases where the issue is whether the accused or defendant is in custody, and/or whether that individual’s freedom of action was impaired.  Many times the courts ask whether the individual was able to leave or walk away from the questioning.

          Miranda instructs the police that if the accused indicates he wants to consult with an attorney prior to questioning beginning then the police cannot start questioning.  Further, Miranda also informs us that questioning must stop when a defendant, suspect, accused asks for an attorney. 

          Voluntariness means a free and deliberate choice not induced by intimidation, coercion or deception.  A great example of an involuntary statement is given in the U.S. Supreme Court case of Mincey v. Arizona, 437 U.S. 385 (1978). Mincey was in the hospital when the police questioned him.  The Supreme Court found that it was apparent that Mincey’s statements were not voluntary.  Mincey was weakened by pain and shock, isolated from family, friends and legal counsel, and barely conscious. His will was simply overborne.  That court ruled that statements obtained as these were could not be used in “any way” against a defendant at trial. 

          A judge determines voluntariness of statements, and if the judge rules that the statements were involuntarily then the jury will not be allowed to hear the statement.  (see Jackson v. Denno, 378 U.S. 368 (1984).   

          Motions to suppress can help the court determine the Miranda issues and whether they were followed by law enforcement.  

          IF YOU HAVE QUESTIONS ABOUT Miranda or any other criminal matter, you can contact us at any time at: or through our web site