“You have the right to remain silent….”

Is there anybody in the United States that has not heard this phrase from the Miranda rights before?  Not everybody has been subject to a law enforcement advisement. But these rights and this phrase is very much a part of the American social fabric. Indeed, widely known as “the Fifth”, or the Miranda rights.

Specifically, the Fifth Amendment right against self-incrimination derives from the U.S. Supreme Court decision in Arizona v. Miranda, 384 U.S. 436 (1966), which holds:

The prosecution may not use statements, inculpatory or exculpatory, stemming from custodial interrogation, unless the state demonstrates procedural safeguards effective to secure the privilege against self-incrimination.


This holding is clear. But there is a misperception among the public. The police not reading Miranda is an issue only if an “in-custody” person makes incriminating statements in response to a police question. Police merely not advising of Miranda will not in and of itself dismiss a case. And, the impact of a Miranda violation is the prosecution will lose statements a defendant made prior to the advisement. That’s it. There will not be an “automatic” dismissal. The impact is a preclusion of the defendant’s statements if the defendant was not free to leave.

When Do the Police Have to Read the Miranda Rights?

As touched on above, the Fifth Amendment right against self-incrimination is a safeguard to statements made by a person during a “custodial interrogation.” 

Step 1: The Miranda rights require an “interrogation”.

The first step in this analysis is to determine whether there was an “interrogation”.  This defined as anything designed to “elicit an incriminating response.”  An easy example would be a police officer asking a direct question as to a person’s involvement in an investigation.  Another example would be an officer using tactics in front of a person with the goal to get the person to make a statement.  Such as, talking to another officer in front of the person about the person, or crime investigated, with a goal orientation to elicit some response and get the person to incriminate themselves.  

Step 2: The Miranda rights require a person to be “in custody”?

Is a person “in custody?”  The United States Supreme held:

Whether one is in custody is determined objectively: under the circumstances, would a reasonable person feel deprived of his freedom of action?

State v. Stanley, 167 Ariz. 519, 523, 809 P. 2d 944, 948 (1991).

Indeed, this determination requires an analysis from an “objective, reasonable person’s” standpoint of whether that person felt free to leave.  To make this determination, the Arizona Supreme Court stated factors to determine if one was “in custody” for Fifth Amendment Miranda purposes.  These “Stanley factors” are:

  1. Whether the objective indicia of arrest are present?
  2. Site of the Interrogation?
  3. Length and Form of the Interrogation?
  4. Whether the investigation had focused on the accused?

Stanley, 167 Ariz. at 523, 809 P2d at 948. 

Stanley Factor Analysis

The Stanley factors provide guidance in making an “in custody” determination.  However, one factor is not necessarily dispositive over the other.  Arizona trial courts conduct an analysis of the factors and essentially weigh them to determine whether a Miranda violation has occurred.  For example, a 5-minute fact finding question-answer at a police station in an interrogation room and an investigation not yet focused on one suspect may not require Miranda.  However, a longer interrogation with questions focused on eliciting an incriminating response makes Miranda more likely.  Contrast with a person sitting in the comforts of their own living room but surrounded by armed police officers blocking all exits.  That scenario may likely require the warnings.  Every case is different.

Certainly, this is a gray area. Questions fact-finding in nature versus investigators goal oriented at the person.  How long was the interrogation?  If lengthy it may suggest it is leaning towards focusing on the person as a suspect, but not necessarily.  Prior to the interrogation, had the investigation already begun to focus on the person?  Generally, if law enforcement has not eliminated other potential suspects, a trial court is not likely to find that there has been a focus on a specific individual for Miranda purposes, but that may depend. 

Miranda Waiver Must be Voluntary

Indeed, the State must always prove that it obtained a statement from a person in a voluntary manner.  Voluntariness of a statement is a separate issue from a Miranda violation. Like a Miranda issue, voluntariness is a legal issue for a judge to determine.  However, voluntariness is a jury issue also. Even after a judge finds a statement voluntary a jury is free to reject it.  This is different from a Fifth Amendment Miranda issue where only the judge makes the determination.  Indeed, a jury should never even hear the words Miranda, particularly if the person on trial has invoked.  This could lead to a mistrial depending on which party elicited the evidence or how it came out.


The public misperception that a Miranda violation requires the State to dismiss the case leaves many people confused when that does not happen.  As discussed in detail above, a Miranda violation will not, in and of itself, require the State to dismiss the case.  Rather, a Miranda violation will only result in statement preclusion at trial. However, this may ultimately result in a dismissal by the prosecutor if they do not have other sufficient evidence against the person.  

The author of this blog, Jeremy L. Huss, is the founder of Huss Law and has been handling issues surrounding confessions and the Fifth Amendment right against self-incrimination for many years.  If you are the subject of an investigation where law enforcement has, or is seeking to interview/interrogate you, call Huss Law for a Free Consultation

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