Attorney James K. Minick

Attorney James K. Minick

Due to exposure from TV shows and movies to the famous Miranda warnings, many people are aware that police are required to give a Miranda warning following an arrest. However, some people assume that if the police don’t read them their Miranda warning, they will be able to escape punishment for their arrest. Unfortunately, this is not true. Although Miranda warnings are required, they will not absolve an individual from criminal liability for their actions. However, what does happen if a Miranda warning is not read?

Miranda v. Arizona – The Historical Basis

In Miranda v. Arizona, the Supreme Court established a landmark decision regarding an individual’s 5th Amendment right against self-incrimination and their 6th Amendment right to counsel. In Miranda, the police questioned Ernesto Miranda concerning the kidnapping and rape of a teenage girl based off of circumstantial evidence. After two hours of interrogation, Miranda signed a confession implicating himself in the rape charges. Throughout the interrogation, the police never told Miranda that he had the right to counsel of an attorney or the right to remain silent. After considering the facts and the legal rights in question, the Supreme Court mandated that a criminal defendant must be explicitly informed of their 5th Amendment right against self-incrimination and their 6th Amendment right to counsel before and during an interrogation. Additionally, a criminal defendant must understand his rights and voluntarily waive them. This decision established a brightline rule that police officers were required to follow in order to obtain evidence admissible in a court of law.

The Miranda Warning

The Miranda waning is short and to the point: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”


Although the Miranda warning seems fairly simple, there is far more to it then meets the eye. As such, if you are faced with an interrogation as a criminal defendant, it is important that you understand the implications of your actions. Although you may be confused, stressed, and/or afraid, the most important thing you can do in a criminal interrogation is to acknowledge that you understand your Miranda warning, explicitly state that you want an attorney, and stop talking. By doing this, you prevent any further complications in what could already be a complicated criminal matter.

Failure to Provide a Miranda Warning

If an individual has been placed in police custody and has not been read his Miranda warning, any statement that the individual makes cannot be used as evidence against the individual at trial. This applies regardless of whatever the individual says, even if the individual confesses to the crimes. Additionally, any statement that the individual makes that leads to the police finding evidence of a crime will also generally be excluded at trial under the Fruit of the Poisonous Tree rule.

Right to Silence

After a Miranda warning is given, prosecutors are not allowed to use the lack of response or silence against a criminal defendant in court. However, Miranda warnings are only required to be given to individuals who are officially in police custody. This custody is determined when a person is in a situation where a reasonable person would not believe that they are free to leave. So what happens to an individual who is talking to police but is not considered in custody?

Salinas v. Texas

In Salinas v. Texas (PDF), the Supreme Court considered the case of Genovevo Salinas. After a double homicide, Salinas willingly went to the police station to talk to the police in order to clear his name. Although Salinas was at the police station, he was not considered in custody since he willingly went and was not arrested or interrogated for the crime. As such, the police did not read him his Miranda rights. After some questioning, police asked him whether tests done on his shotgun would return a positive match for the gun used in the crime. Immediately after this question was asked, Salinas stopped talking, started fidgeting, and tensed up. Consequently, Salinas was later arrested for the double homicide. During Salinas’ trial for the double homicide, Salinas claimed his 5th Amendment right against self-incrimination. However, in their case, the prosecution referred to Salinas’ reaction to the questioning multiple times. However, after considering the facts and the legal issues, the Supreme Court controversially ruled that Salinas could not claim 5th Amendment protection regarding his actions since he did not expressly invoke his 5th Amendment rights. From this case, many critics have claimed that the protection given by the 5th Amendment has been effectively stripped away from U.S. citizens.


Although police officers are required to read individuals who are arrested their Miranda rights, individuals who are not arrested or considered in custody must be very careful in their interactions with police officers due to the ruling in Salinas. Based off of the legal reasoning extended in Salinas, in order to be able to use the protection that the 5th Amendment purports to extend, a person must explicitly state that they are invoking their right to silence.

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If you or someone you know have been charged with a crime, it is important to consult with an experienced criminal defense attorney that can help zealously defend your case. Contact Us at Minick Law, P.C. for a free consultation on your case.

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