As a starting point, I always appreciate when clients help provide me with possible problems with their arrest or charges. I am frequently informed that “law enforcement officers never read me my Miranda rights before I was arrested.” And I sometimes am asked a follow-up: “because they did not read me my rights, can my criminal charges be dismissed because my rights were violated?“

A. The Miranda rights requirement

My response to the first common question begins with an explanation that there is no absolute requirement for law enforcement to read someone their Miranda rights (see post on these rights here). The landmark U.S. Supreme Court ruling in Miranda v. Arizona (1966) covers what is called “custodial interrogation.” Each of these two words matter.

First, there must be an “interrogation” (law enforcement must ask questions).

Second, the person must in actual custody or otherwise significantly deprived of their freedom of action (i.e., area not free to leave.

To clarify their status during any encounter with law enforcement, they can explicitly ask officers, “Am I free to go?”—if the answer is no, the person is likely in a custodial environment and constitutional protections against interrogation apply.

B. When Miranda rights need not be read

Given this explanation of Miranda (section A), there are two categories in which Miranda rights need not be read to a person:

1. If a person is not asked any questions (e.g., they are just arrested).
2. If a person is asked questions but is not in a custodial interrogation (i.e., they are free to go but answer questions anyway).

Consequences of failure of law enforcement to read Miranda rights

If the rights must be read (see section A) and are not read, the consequence is not dismissal of the charges!

The consequence of this constitutional violation is that the State (prosecutor) will not be able to use any statements or answers someone makes during such a custodial investigation without having been given Miranda rights.

• Of course, when a judge bars a jury from hearing such statements (e.g., confession) can be significant and could result is dismissal or acquittal.
• But frequently, the barred statements are simply not important — yes, the defendant answered questions; yes, the defendant’s rights were violated; but what the defendant told law enforcement was not especially helpful to law enforcement or the pro. The consequence is the same — those statements can’t be used. This is often of little value to the defendant.
• Finally, some defendants when questioned without having had their Miranda rights read, still remain silent. They give law enforcement nothing. So, what is “barred” from the jury by such a constitutional violation? Nothing. This is equivalent to the “no harm, no foul” of unconstitutional interrogation.