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What are your Miranda rights?

Of the many things that popular TV crime shows get wrong about the justice system, perhaps the most pervasive is the Miranda warning. We’ve all seen it a million times—the moment the handcuffs click, the warning begins: “You have the right to remain silent. Anything you say can and will….”

It is no wonder that first-time arrestees are surprised when they are not read their Miranda rights. Outside of the realm of TV crime dramas, law enforcement is only required to advise of the right to remain silent and the right to counsel when a person is subject to “custodial interrogation”—that is, being asked questions intended to produce an incriminating response in a situation where they are legally considered to be under arrest.

Questions asked during an investigation before arrest or statements are made, even after the Miranda decision does not protect an arrest that are not in response to such “interrogation.” If Miranda is violated, the only remedy is that the prosecution is precluded from using the illegally obtained statements as evidence in their case unless they are being used to impeach the person who made the statements.

This term, the Colorado Supreme Court is considering the scope of one of many exceptions to the Miranda doctrine. The current law allows police to question a person who has been arrested but not advised of their Miranda rights about the presence of weapons if there is a threat to public safety.

Typically, this happens when there has been a violent crime, such as a shooting, and law enforcement must locate any weapons involved quickly. But in the case before the Court, the defendant was seen running without a weapon and then only found to have two shotguns shells in a pocket when arrested.

No gun was reported to have been involved in the incident. So, is this sufficient information for there to be a public safety exception? Or did the police overstep in interrogating the defendant without advising him of his rights when all that had been discovered was ammunition for a weapon that would be difficult to hide or conceal?

The Court may find that it is possible to impose a bright-line rule for when a public safety exception exists, or, more likely, will look at factors that apply to each case individually and must be weighed in a totality of the circumstances of each arrest. Regardless of the outcome, one thing is clear: your Miranda rights are certainly not “as seen on TV,” and an experienced criminal defense lawyer is a far better source of advice than bingeing NCIS on Netflix.

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