Lending Aid to a Friend

Your Fifth Amendment right against self-incrimination is so important that it's something the police are sometimes required to remind you about via a "Miranda" warning. If you've ever spent a lot of time watching crime dramas like "NCIS" or "Law And Order," you're no-doubt familiar with the scene where the criminal suspect is arrested and read his or her Miranda rights.

Unfortunately, if everything you know about your Miranda rights comes from TV, you may be confused about when the police are actually required to issue them. On TV, the arresting officer starts reciting the Miranda warning as soon as he or she slaps cuffs on the suspect's wrists. That's not actually how things work in real life. Here's what you should know:

When does an officer have to give you a Miranda warning?

Three things have to be true in order for an officer to legally be required to issue the Miranda warning:

1. You have to be in custody. That means that you are not free to leave. If you ask, "Am I free to leave?" and are told that you can, you are not officially in custody. (On the other hand, if it's clear you aren't free to leave -- like if you're sitting on the ground in a set of those plastic restraints with an officer standing over you, you're in custody even if you aren't officially told that you are in custody.)
2. You have to be under interrogation. That means that someone is actively asking you questions that are probably designed to elicit incriminating information while you are in custody. 
3. The questioner has to be an officer or agent of the law. You are only entitled to hear your Miranda warning if the person you are talking to is an officer, detective, prosecutor, or some other person working as an agent for the police.

Until all three of those things are in place, you can be arrested and tossed into a cell without the benefit of a Miranda warning. This often misleads people to believe that it's safe to talk -- because they think that what they say can't be used against them!

When can what you say be used against you despite the lack of a Miranda warning?

Here are some common scenarios that trip up criminal defendants:

• You're asked to come into the police station to talk to a detective. You comply. You are asked all kinds of questions and you give answers, thinking you are safe because you haven't been Mirandized. You aren't. You aren't in custody.
• You're put in handcuffs and you start voluntarily talking to the arresting officer about what happened on the way to the jail from the back seat of the car. You haven't been Mirandized, but since you weren't under interrogation, it doesn't matter.
• You're put in a holding cell. Your cellmate asks about your arrest and you admit to the crime. An officer overhears. Since you weren't be questioned by the police and the other inmate wasn't acting on their behalf, you aren't protected.

This is why an experienced criminal defense attorney will always tell his or her clients that "silence is golden," when interacting with the police. No matter what the circumstances, don't give up any information to the police without your attorney's advice.