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Offered by Brighton resident Gregory R. McMahon, Esq.

Just about every criminal lawyer has heard a defendant say this. Many people, in fact, believe that if the police don’t read them their Miranda rights, they can’t be prosecuted.

But is that true? The answer is usually “no”.

So-called Miranda warnings come from the 1966 Supreme Court case Miranda v. Arizona. That case established that, when a defendant is in custody, and before any questioning, he must be advised he has the right to remain silent, that anything he says may be used against him in a court of law, that he has a right to an attorney, and so on. We’ve all heard these warnings on TV and in movies.

The warnings are only required if the defendant is in custody, and is being interrogated. If the police aren’t asking you questions, they don’t have to give you Miranda. (Asking your name and address is not usually “interrogation”. Those are routine booking questions.)

So if you are not being questioned, there is no Miranda requirement. Nor must you be warned if you are not in custody. The police may ask you questions like anyone else, as long as you’re not under arrest. (Though you don’t usually have to answer them.)

And if your Miranda rights are violated, it only means the police cannot use what you say against you, not that they can’t charge you at all.

The information in this column is not legal advice and does not create an attorney-client relationship.

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