The Miranda warning,
(commonly, but incorrectly: Miranda rights, as the rights in question are defined in the U.S. Constitution) is a warning that is required to be given by police in the United States to criminal suspects in police custody (or in a custodial situation) before they are interrogated to inform them about their constitutional rights.
In Miranda v. Arizona, the Supreme Court of the United States held that an elicited incriminating statement by a suspect will not constitute admissible evidence unless the suspect was informed of the right to decline to make self-incriminatory statements and the right to legal counsel (hence the so-called "Miranda rights"), and makes a knowing, intelligent and voluntary waiver of those rights.[Note 1] The Miranda warning is not a condition of detention, but rather a safeguard against self-incrimination; as a result, if law enforcement officials decline to offer a Miranda warning to an individual in their custody, they may still interrogate that person and act upon the knowledge gained, but may not use that person's statements to incriminate him in a criminal trial.
As of a June 1, 2010, U.S. Supreme Court decision (Berghuis v. Thompkins), criminal suspects must now unambiguously invoke their right to remain silent and have an attorney represent them.
A CBP officer reading the Miranda rights to a suspect.
The concept of "Miranda rights" was enshrined in U.S. law following the 1966 Miranda v. Arizona Supreme Court decision, which found that the Fifth Amendment and Sixth Amendment rights of Ernesto Arturo Miranda had been violated during his arrest and trial for rape and kidnapping (Miranda was subsequently retried).
The Supreme Court did not specify the exact wording to use when informing a suspect of their rights. However, the Court did create a set of guidelines that must be followed. The ruling states:
“ ...The person in custody must, prior to interrogation, be clearly informed that he or she has the right to remain silent, and that anything the person says will be used against that person in court; the person must be clearly informed that he or she has the right to consult with an attorney and to have that attorney present during questioning, and that, if he or she is indigent, an attorney will be provided at no cost to represent her or him. ”
As a result, American English developed the verb Mirandize, meaning "read the Miranda warning to" a suspect (when the suspect is arrested).
Notably, the Miranda rights do not have to be read in any particular order, and they do not have to precisely match the language of the Miranda decision, as long as they are adequately and fully conveyed. California v. Prysock, 453 U.S. 355 (1981).
On June 1, 2010, in deciding the Berghuis v. Thompkins case, the United States Supreme Court declared that criminal defendants who have been read the Miranda rights (and who have indicated they understand them and have not already waived them), must explicitly state during or before an interrogation begins that they wish to be silent and not speak to police in order for that protection against self-incrimination to apply. If they speak to police about the incident before the Miranda right to remain silent is mentioned, or afterwards at any point during the interrogation or detention, the words they speak may be used against them if they have not stated they do not want to speak to police. Justice Anthony M. Kennedy wrote the opinion and was joined by Justices Scalia, Alito, and Thomas and by Chief Justice Roberts. Justices Stevens, Ginsburg, Sotomayor, and Breyer dissented. Elena Kagan, who had presented the government's case as Solicitor General of the U.S. and who was nominated to succeed Justice Stevens, supported Kennedy's ruling in her arguments that pointed out that the ruling spelled out for prosecutors and defendants just how the right against self-incrimination applies in such cases. Those who oppose it state that the requirement that the defendant must speak to indicate his intention to remain silent further erodes the ability of the defendant to stay completely silent about the case. This opposition must be put in context with the second option offered by the majority opinion, which allowed that the defendant had the option of remaining silent, saying: " Had he wanted to remain silent, he could have said nothing in response or unambiguously invoked his Miranda rights, ending the interrogation." Thus having been "Mirandized" a suspect may avow explicitly the invocation of these rights, or, alternatively, simply remain silent. Absent the former "anything [said] can and will be used against [the defendant] in a court of law."
Typical usage
Every U.S. jurisdiction has its own regulations regarding what, precisely, must be said to a person arrested or placed in a custodial situation. The typical warning states:
“ 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 speak to an attorney. If you cannot afford an attorney, one will be appointed to you. Do you understand these rights as they have been read to you? ”
The courts have since ruled that the warning must be "meaningful", so it is usually required that the suspect be asked if he understands his rights. Sometimes, firm answers of "yes" are required. Some departments and jurisdictions require that an officer ask "do you understand?" after every sentence in the warning. An arrestee's silence is not a waiver, but on June 1 2010, the Supreme Court ruled 5-4 that police are allowed to interrogate suspects who have not unambiguously invoked or waived their rights, and any statement given during questioning prior to invocation or waiving is admissible as evidence.. Evidence has in some cases been ruled inadmissible because of an arrestee's poor knowledge of English and the failure of arresting officers to provide the warning in the arrestee's language.
Also because of various education levels, officers must make sure the suspect understands what the officer is saying. It may be necessary to "translate" to the suspect's level of understanding. Courts have ruled this admissible as long as the original waiver is said and the "translation" is recorded either on paper or on tape.
Some jurisdictions provide the right of a juvenile to remain silent if their parent or guardian is not present.
Some departments in New Jersey, Nevada, Oklahoma, and Alaska modify the "providing an attorney" clause as follows:
“ We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court. ”
Even though this sentence may be somewhat ambiguous to some laypersons, the U.S. Supreme Court has approved of it as an accurate description of the procedure in those states. Duckworth v. Eagan, 492 U.S. 195 (1989) (upholding use of sentence by Hammond, Indiana police).
In states bordering Mexico, including Texas, New Mexico, Arizona, and California, suspects who are not United States citizens are given an additional warning:
“ If you are not a United States citizen, you may contact your country's consulate prior to any questioning. ”
Some states including Virginia require the following sentence, ensuring that the suspect knows that waiving Miranda rights is not a one-time absolute occurrence:
“ You can decide at any time from this moment on to terminate the interview and exercise these rights. ”
California, Texas, New York, Florida, Illinois, North Carolina, South Carolina, Virginia, Washington and Pennsylvania also add the following questions to comply with the Vienna Convention on Consular Relations.
“ Question 1: Do you understand each of these rights I have explained to you? ”
“ Question 2: Having these rights in mind, do you wish to talk to us now? ”
An affirmative answer to both of the above questions waives the rights. If the suspect responds "no" to the first question, the officer is required to re-read the Miranda warning, while saying "no" to the second question invokes the right at that moment; in either case the interviewing officer or officers cannot question the suspect until the rights are waived.
Generally, when defendants invoke their Fifth Amendment right against self-incrimination and refuse to testify or submit to cross-examination at trial, the prosecutor cannot punish them by commenting on their silence and insinuating that it is an implicit admission of guilt. Griffin v. California, 380 U.S. 609 (1965). Since Miranda rights are simply an extension of the Fifth Amendment which protects against coercive interrogations, the same rule also prevents prosecutors from commenting about the postarrest silence of suspects who invoke their Miranda rights immediately after arrest. Wainwright v. Greenfield, 474 U.S. 284 (1986). However, neither the Fifth Amendment nor Miranda extend to prearrest silence, so if a defendant takes the stand at trial (thereby waiving his Fifth Amendment rights), the prosecutor can attack his credibility with his prearrest silence (where he failed to turn himself in and confess immediately). Jenkins v. Anderson, 447 U.S. 231 (1980).
Under the Uniform Code of Military Justice, Article 31 provides for the right against self-incrimination. Interrogation subjects under Army jurisdiction must first be given Department of the Army Form 3881(PDF), which informs them of the charges and their rights, and sign it. The United States Navy and United States Marine Corps require that all arrested personnel be read the "rights of the accused" and must sign a form waiving those rights if they so desire; a verbal waiver is not sufficient.
It has been discussed whether a Miranda warning — if spoken or in writing — could be appropriately given to disabled persons. For example, "the right to remain silent" means little to a deaf individual and the word "constitutional" may not be understood by people with only an elementary education. The content of a Miranda warning can be understood by a 6th- to 8th-grade pupil while only 10 to 15 percent of prelingually deaf people have been found to be that competent, due to the linguistic and cultural differences between the Deaf and Hearing communities. In one case, a deaf murder suspect was kept at a therapy station until he was able to understand the meaning of the Miranda warning and other judicial proceedings.
Public safety exception
The rule of Miranda is not, however, absolute and an exception exists in cases of “public safety.” This is a limited and case-specific exception to the general rule of Miranda which allows certain unadvised statements (given without Miranda warnings) to be admissible into evidence at trial when they were elicited in circumstances where there is great danger to public safety.
The public safety exception is derived from New York v. Quarles, a case in which the Supreme Court considered the admissibility of a statement elicited by a police officer who apprehended a rape suspect who was thought to be carrying a firearm. The arrest took place in a crowded grocery store. When the officer arrested the suspect, he found an empty shoulder holster, handcuffed the suspect, and asked him where the gun was. The suspect nodded in the direction of the gun (which was near some empty cartons) and said, “The gun is over there.” The Supreme Court found that such an unadvised statement was admissible in evidence because "[i]n a kaleidoscopic situation such as the one confronting these officers, where spontaneity rather than adherence to a police manual is necessarily the order of the day, the application of the exception we recognize today should not be made to depend on post hoc findings at a suppression hearing concerning the subjective motivation of the police officer.” Thus, the jurisprudential rule of Miranda must yield in “a situation where concern for public safety must be paramount to adherence to the literal language of the prophylactic rules enunciated in Miranda.” The rule of Miranda is not, therefore, absolute and can be a bit more elastic in cases of “public safety.”
Confusion regarding use
Due to the prevalence of American television programs and motion pictures in which the police characters frequently read suspects their rights, it has become an expected element of arrest procedure—in the 2000 Dickerson decision, Chief Justice William Rehnquist wrote that Miranda warnings had "become embedded in routine police practice to the point where the warnings have become part of our national culture."
While arrests and interrogations can legally occur without the Miranda warning being given, this procedure would generally make the arrestee's pre-Miranda statements inadmissible at trial. (However, pursuant to the majority opinion in United States v. Patane, evidence obtained as a result of pre-Miranda statements may still be admitted.)
In some jurisdictions, a detention differs at law from an arrest, and police are not required to give the Miranda warning until the person is arrested for a crime. In those situations, a person's statements made to police are generally admissible even though the person was not advised of their rights. Similarly, statements made while an arrest is in progress before the Miranda warning was given or completed are also generally admissible.
Because Miranda applies only to custodial interrogations, it does not protect detainees from standard booking questions: name, date of birth, address, and the like. Because it is a protective measure intended to safeguard the Fifth Amendment privilege against self-incrimination, it does not prevent the police from taking blood without a warrant from persons suspected of driving under the influence of alcohol. (Such evidence may be self-incriminatory, but are not considered statements of self-incrimination.)
If an inmate is in jail and invoked Miranda on one case, it is unclear whether this extends to any other cases that they may be charged with while in custody. For example: a subject is arrested, charged with robbery, and is held in county jail awaiting trial. He invoked his Miranda rights on the robbery case. In custody he is involved in a fight where another inmate is badly hurt. He speaks to the custodial staff regarding the fight without invoking Miranda. It is unclear if this statement is admissible because of the original Miranda statement.
Many police departments give special training to interrogators with regard to the Miranda warning; specifically, how to influence a suspect's decision to waive the right. For instance, the officer may be required to specifically ask if the rights are understood and if the suspect wishes to talk. The officer is allowed, before asking the suspect a question, to speak at length about evidence collected, witness statements, etc. The officer will THEN ask if the suspect wishes to talk, and the suspect is then more likely to talk in an attempt to refute the evidence presented. Another tactic commonly taught is never to ask a question; the officer may simply sit the suspect down in an interrogation room, sit across from him and do paperwork, and wait for the suspect to begin talking.These tactics are intended to mitigate the restrictions placed on law officers against compelling a suspect to give evidence, and have stood up in court as valid lawful tactics. Nevertheless, such tactics are condemned by legal rights groups as deceptive.
The Miranda rule applies to the use of testimonial evidence in criminal proceedings that is the product of custodial police interrogation.Therefore, for Miranda to apply six factors must be present:
evidence must have been gathered
the evidence must be testimonial
the evidence must have been obtained while the suspect was in custody
the evidence must have been the product of interrogation
the interrogation must have been conducted by state-agents and
the evidence must be offered by the state during a criminal prosecution.
The first requirement is obvious. If the suspect did not make a statement during the interrogation the fact that he was not advised of his Miranda rights is of no importance. Second, Miranda applies only to “testimonial” evidence as that term is defined under the Fifth Amendment. For purposes of the Fifth Amendment, testimonial statements mean communications that explicitly or implicitly relate a factual assertion [an assertion of fact or belief] or disclose information.The Miranda rule does not prohibit compelling a person to engage in conduct that is incriminating or may produce incriminating evidence. Thus, requiring a suspect to participate in identification procedures such as giving handwriting or voice exemplars, fingerprints, DNA samples, hair samples, and dental impressions is not within the Miranda rule. Such physical or real evidence is non-testimonial and not protected by the Fifth Amendment self-incrimination clause. On the other hand, certain non-verbal conduct may be testimonial. For example, if the suspect nodded his head up and down in response to the question "did you commit the crime" the conduct is testimonial, it is the same as saying "yes I did" and Miranda would apply.
Third, the evidence must have been obtained while the suspect was in custody. Custody means either that the suspect was under arrest or that his freedom of movement was restrained to an extent "associated with a formal arrest."A formal arrest occurs when an officer, with the intent to make an arrest, takes a person into custody by the use of physical force or the person submits to the control of an officer who has indicated his intention to arrest the person. In the absence of a formal arrest, the issue is whether a reasonable person in the suspect’s position would have believed that he was under arrest. Applying this objective test, the Court has held Miranda does not apply to roadside questioning of a stopped motorist or to questioning of a person briefly detained on the street. Even though neither the motorist nor the pedestrian is free to leave, this interference with the freedom of action is not considered custody for purposes of the Fifth Amendment.The court has similarly held that a person who voluntarily comes to the police station for purposes of questioning is not in custody and thus not entitled to Miranda warnings particularly when the police advise the suspect that he is not under arrest and free to leave. Generally, incarceration or imprisonment constitutes custody. However, Miranda is not offense-specific. Therefore, a person who is incarcerated could not be interrogated about any offense regardless of whether the questioning related to the offense for which she is incarcerated or any other offense absent a valid Miranda waiver.
Fourth, the evidence must have been the product of interrogation. A volunteered statement by a person in custody does not implicate Miranda. In Rhode Island v. Innis the Supreme Court defined interrogation as express questioning and "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Thus, a practice that the police "should know is reasonably likely to evoke an incriminating response from a suspect... amounts to interrogation." For example, confronting the suspect with incriminating evidence may be sufficiently evocative to amount to interrogation because the police are essentially "saying", "how do you explain this?" On the other hand, "unforeseeable results of [police] words or actions" do not constitute interrogation. Under this definition, routine statements made during the administration of sobriety tests would not implicate Miranda. For example, a police officer arrests a person for impaired driving and takes him to the police station to administer an intoxilyzer test. While at the station the officer also asks the defendant to perform certain psycho-physical tests such as the walk and turn, one leg stand or finger to nose test. It is standard practice to instruct the arrestee on how to perform the test and to demonstrate the test. An incriminating statement made by arrestee during the instruction, "I couldn't do that even if I was sober", would not be the product of interrogation. Similarly, incriminating statements made in response to requests for consent to search a vehicle or other property are not considered to be the product of interrogation.
Fifth, the interrogation must have been conducted by state-agents. In order to establish a violation of the defendant’s Fifth Amendment rights, the defendant must show state action. In the Miranda context, this means that the interrogation must have been conducted by a known state-agent.If the interrogation was conducted by a person known by the suspect to be a law enforcement officer the state action requirement is unquestionably met. On the other hand, where a private citizen obtains a statement there is no state action regardless of the custodial circumstances surrounding the statement. A confession obtained through the interrogation by an undercover police officer or a paid informant does not violate Miranda because there is no coercion, no police dominated atmosphere if the suspect does not know that she is being questioned by the police. Private security guards and "private" police present special problems. They are generally not regarded as state-agents, unless they are deputized. However, an interrogation conducted by a police officer moonlighting as a security guard may well trigger Miranda’s safeguards since an officer is considered to be “on duty” at all times.
Sixth, the evidence is being offered during a criminal proceeding. Under the exclusionary rule, a Miranda-defective statement cannot be used by the prosecution as substantive evidence of guilt. However, the Fifth Amendment exclusionary rule applies only to criminal proceedings. In determining whether a particular proceeding is criminal, the courts look at the punitive nature of the sanctions that could be imposed. Labels are irrelevant. The question is whether the consequences of an outcome adverse to the defendant could be characterized as punishment. Clearly a criminal trial is a criminal proceeding since if convicted the defendant could be fined or imprisoned. However, the possibility of loss of liberty does not make the proceeding criminal in nature. For example, commitment proceedings are not criminal proceedings even though they can result in long confinement because the confinement is considered rehabilitative in nature and not punishment. Similarly, Miranda does not apply directly to probation revocation proceedings because the evidence is not being used as a basis for imposing additional punishment.
If all six factors are present, then Miranda applies and any testimonial evidence that was the product of custodial interrogation is subject to suppression under the Fifth Amendment exclusionary rule unless the interrogation was preceded by a valid Miranda waiver or an exception to the Miranda rule of exclusionary rules applies.
A valid Miranda waiver consists of properly advising the suspect of her Miranda rights and obtaining a waiver of those rights. (The rights, the waiver, and typical phrasings are explained above this section.)
It is important to note that immigrants who live in the United States illegally are also protected and should receive their Miranda warnings as well when being interrogated or placed under arrest. “Aliens receive constitutional protections when they have come within the territory of the United States and [have] developed substantial connections with this country”
The Fifth Amendment right to counsel which is a component of the Miranda Rule is to be distinguished from the Sixth Amendment right to counsel. In the context of the law of confessions the Sixth Amendment right to counsel is defined by the Massiah Doctrine.
Report of warnings being given to detainees in Afghanistan
Beginning in 2009, some detainees captured in Afghanistan have been read their Miranda rights by the FBI, according to Congressman Michael Rogers of Michigan, who claims to have witnessed this himself. According to the Justice Department, "There has been no policy change nor blanket instruction for FBI agents to Mirandize detainees overseas. While there have been specific cases in which FBI agents have Mirandized suspects overseas, at both Bagram and in other situations, in order to preserve the quality of evidence obtained, there has been no overall policy change with respect to detainees."
Equivalent rights in other countries
Australia
Within Australia, the right to silence derives from common law. The uniform position amongst the states is that neither the judge nor the jury is permitted to draw any adverse inference about the defendant's culpability, where he/she does not answer police questions. While this is the common law position, it is buttressed by various legislative provisions within the states. For instance s.464J of the Crimes Act 1958 (Vic) and s.89 of the Evidence Act 1995 (NSW).
It has also been upheld by the High Court in the case of Petty v R (1991) 173 CLR 95. However, where a defendant answers some police questions, but not others, an inference may sometimes be drawn about the questions he refused to answer. (See Coldrey, below.)
The current caution used in New South Wales is:
“ You are not obliged to say or do anything unless you wish to do so, but whatever you say or do may be used in evidence. Do you understand? ”
Where a defendant refuses to speak to the police, but then speaks to an undercover member of the police, that evidence is likely to be excluded so as to ensure that the police do not avoid their limitations. However, if a defendant speaks to a person who is not a member of the police and who is fitted with a listening device, that evidence would be admitted.
Australian research indicates that very few suspects actually refuse to speak. Stevenson's research (see below for citation) indicates that only 4% of suspects who are subsequently charged and tried in the District Court of New South Wales in Sydney remain silent during interviews. The Victorian DPP found that 7-9% of suspects refused to answer police questions.
A number of states have conducted Enquiries into the adoption of the English changes set out in the Criminal Justice and Public Order Act 1994. All states have rejected such change. As the NSW Report said:
“ It is reasonable that innocent persons faced with a serious accusation might wish to consider their situations carefully before making any disclosure, especially where the circumstances appear suspicious but it cannot be assumed that they are rational and articulate. In many cases, suspects may be emotional, perhaps panicked, inarticulate, unintelligent, easily influenced, confused or frightened or a combination of these. They may be unable to do themselves justice. Such persons may be well advised to hold their peace, at least at an early stage. They may, of course, have something to hide, but that something may simply be shameful and not a crime, or it may implicate others for whom they feel responsible. The supposition that only a guilty person has a reason for not speaking freely to investigating police is an unreasonable assumption. ”
It is also important to note that anything said to an Australian police member should be corroborated, especially by way of video or audio tape. If it is not so corroborated it will be admitted only under exceptional circumstances, S.464H (2)(a) of the Crimes Act 1958 (Vic), and where the circumstances, on the balance of probabilities, justify the reception of the evidence, S.464H (2)(b) of the Crimes Act 1958 (Vic). While initially the police were insulted by this ruling most have now come to find it useful as a way of proving that they did not invent a false, verbal confession, never made by an accused (a practice called "verballing" an accused).
Canada
In Canada, equivalent rights exist pursuant to the Charter of Rights and Freedoms. Under the Charter, an arrested person has the right:
to be informed promptly of the reasons therefor;
to retain and instruct counsel without delay and be informed of that right;
to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
The Canadian Charter warning reads (varies by police service): "You are under arrest for _________ (charge), do you understand? You have the right to retain and instruct counsel without delay. We will provide you with a toll-free telephone lawyer referral service, if you do not have your own lawyer. Anything you say can be used in court as evidence. Do you understand? Would you like to speak to a lawyer?" (See: R. v. Hebert [1990] 2 S.C.R. 151)
A more detailed version: "I am arresting you for (charge). It is my duty to inform you that you have the right to retain and instruct counsel without delay. You may call any lawyer you want. There is a 24-hour telephone service available which provides a legal aid duty lawyer who can give you legal advice in private. This advice is given without charge and the lawyer can explain the legal aid plan to you. If you wish to contact a legal aid duty lawyer, I can provide you with a telephone number. Do you understand? Do you want to call a lawyer? You are not obliged to say anything, but anything you do say may be given in evidence."
Section 11 of the Charter further provides that a person cannot be compelled to be a witness in a proceeding against them (s. 11(c) - Protection against Self-incrimination) and is presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal (s. 11(d)). Section 14 of the Charter further provides that a translator must be made available so that the person can understand the proceedings against them. This right to a translator extends to the deaf.
While Section 7 of the Charter guarantees the right to remain silent, Canadian law does not entitle the criminal suspect to have counsel present during the course of an interrogation. Once a suspect has asserted their right to counsel, the police are obliged to hold off in attempting to obtain evidence until the suspect has had a reasonable opportunity to contact legal counsel, however suspects do not have the right to have counsel present during the questioning. Also, in Canada even if the suspect emphatically asserts his decision to remain silent, the police may continue to interrogate him. Although this may give the suspect the impression that his claim of the right to silence is meaningless or that he has no such right, it is perfectly legal. In R. v. Singh (163 C.R.R. (2d) 280), the suspect invoked his right to remain silent 18 times and the police nevertheless continued to browbeat him with questioning after each assertion of his right, but the Supreme Court of Canada found this consistent with Canada's Charter rights protections.
European Union
Within the European Union, a gradual process of harmonising the laws of individual countries has resulted in calls for a common letter of rights which would apply to all EU citizens.The proposed common standard would protect:
access to legal advice;
translation assistance as needed;
protection for those unable to follow the proceedings; and
consular assistance for foreign detainees
These would be contained in a "letter of rights" which would be a printed document to be given to suspects after they are detained and before interrogation. The right to silence does not fall under the proposed common standard. This has been criticised on the grounds that the "letter of rights" would be one from which what some people consider to be the most important right is missing, and that this would be confusing for the accused rather than helpful. On the other hand, obstacles to its enactment include the anti-terrorism laws of certain EU members which conflict with these proposed rights.
England and Wales
See also: Right to silence in England and Wales
Warnings regarding the right against self-incrimination may have originated in England and Wales. In 1912, the judges of the Kings Bench issued the Judges Rules. These provided that, when a police member had admissible evidence to suspect a person of an offence and wished to question that suspect about an offence, the officer should first caution the person that he was entitled to remain silent. The pre-trial operation of the privilege against self-incrimination was further buttressed by the decision in Ibrahim v R [1914] AC 599 that an admission or confession made by the accused to the police would only be admissible in evidence if the prosecution could establish that it had been voluntary. An admission or confession is only voluntary if made in the exercise of a free choice about whether to speak or remain silent:
In R v Leckey (1943) CAR 128 the Court of Criminal Appeal said:
“ ... an innocent person might well, either from excessive caution or for some other reason, decline to say anything when charged and cautioned, and if it were possible to hold that out to a jury as a ground on which they might find a man guilty, it is obvious that innocent persons might be in great peril. ”
Therefore a caution of the form
You have the right to remain silent, but anything you do say will be taken down and may be used in evidence.
was used. The Criminal Justice and Public Order Act 1994 amended the right to silence by allowing adverse inferences to be drawn by the jury in cases where a suspect refuses to explain something, and then later produces an explanation (see right to silence in England and Wales). In other words the jury is entitled to infer that the accused fabricated the explanation at a later date, as he refused to provide the explanation during police questioning. The jury is also free to make no such inference. The new caution is:
You do not have to say anything, but it may harm your defence if you do not mention, when questioned, something which you later rely on in court. Anything you do say may be given in evidence.
If questioning is forthcoming, "when questioned" may be substituted with "now". In cases in which the suspect has clearly nothing to gain by failing to remain silent:
Anything you do say may, and will, be given in evidence.
Or:
You do not have to say anything unless you wish to do so, but I must warn you that if you fail to mention any fact which you rely on in your defence in court, your failure to take this opportunity to mention it may be treated in court as supporting any relevant evidence against you. If you do wish to say anything, what you say may be given in evidence.
or even (in circumstances where no adverse inference can be drawn from silence)
You do not have to say anything, but anything you do say may be given in evidence.
The caution in England and Wales does not explicitly require that a suspect affirm they understand the caution.[citation needed] In addition the caution need not be explicitly stated if it is obvious that the suspect is already aware of his rights, for example if he is a police officer, as long as the suspect is definitely aware that he is under caution. Furthermore the invoking of that right does not prohibit officers from asking further questions.
France
In France, any person brought in police custody (garde à vue) must be informed of the maximal duration of the custody, and a number of rights, in a language that this person understands. Among these rights are: the possibility of warning a relative or employer of the custody, that of asking to be examined by a physician, that of discussing the case with an attorney. A suspect, however, only has a right to consult with an attorney at the very beginning of the period of detention and then again, in cases of prolonged detention, after the twenty-fourth hour of detention. In cases of terrorism and narcotrafficking, however, the individual may not consult with an attorney until the seventy-second hour of detention. Further, criminal suspects in garde à vue do not have to be informed of their right to remain silent.
Witnesses against whom there exist indictments (or who are cited as suspects) cannot be heard under oath, and thus do not risk prosecution for perjury. Such witnesses must be assisted by an attorney, and must be informed of these rights when heard by the judiciary. Suspects which are brought before a Juge d'instruction must be informed of their right to remain silent, to make statements, or to answer questions. In all cases, an attorney can be designated by the head of the bar if necessary.
Germany
According to § 136 StPO (Strafprozessordnung, or "Criminal Procedure Code"):
Before any interrogation begins a suspect, arrested or not, must be informed:
Of the crime for which he is charged,
About his right to remain silent,
About his right to consult an attorney before the interview, and
About his right to name any evidence in his favour.
Though the courts may not draw inference from the complete silence of the accused in any stage of criminal proceedings, inference may be drawn if the accused is selectively silent.
Foreign suspects have the following additional rights:
Translation assistance, and
Consular assistance
Spain
In Spain, according to the Ley de Enjuiciamiento Criminal (Penal procedure code), the detainee has to be informed about the charges that lead to his detention, as well as the motives for the deprivation of liberty. She/he hast also to be informed about the following rights:
Right to remain silent, to answer only some questions asked or to express their wish to declare only in front of a judge.
Right to not give evidence against themselves, as well as not to confess their guilt.
Right to legal representation by a private or state-funded attorney, that will assist them during the hearings and procedures.
Right to inform a member of their family or the person they wish about the fact of the detention itself as well as their location at every moment of the proceedings. Foreigners have the right to contact their consular mission in Spain.
Right to request the services of an interpreter for free if the foreigner doesn't speak Spanish.
Right to undergo a medical examination by the forensic doctor.
Israel
In Israel, according to Section 28 of the Criminal Procedure Law (Enforcement Authority - Arrests) 1996, an officer interrogating a suspect must duly warn him first that he does not have to say any thing that may incriminate him, and that any thing he will say may be used against him. According to Israeli law, the exercise of the right to remain silent may be considered as supplemental evidence in most cases, and this fact also needs to be explained to the suspect.
The exact warning is: "I am a police officer: [name and rank] inform you that you are suspected of: [the crimes] you do not have to say anything; whatever you say might be used as evidence against you; refraining from answering questions might strengthen the evidence against you."
Israeli law has not adopted the "Fruits of the Poisoned Tree" doctrine, and flaws in the process of collecting it affect only the weight of tainted evidence. However, in Criminal Appeal 5121/98, Issaharov v. The Military Prosecutor, a court of nine ruled that the defendant's confession, given without proper warning regarding the right of representation, was not considered as given with consent and free will, and was not accepted by the court.
New Zealand
Within New Zealand, the caution is mandated by Section 23 of the Bill of Rights Act 1990, and a practice note on police questioning issued in 2006, by then Chief Justice Sian Elias. The obligation to caution arises when:
a suspect is in custody;
when police have enough evidence to believe the person has committed an offence;
when detained, such as for the execution of a statutory or common law power of search or in the execution of drink driving investigations;
other situations as dictated by statute or case law.
The caution to be given is:
You have the right to refrain from making any statement and to remain silent. You have the right to consult and instruct a lawyer in private and without delay, and that such right may be exercised without cost under the Police Detention Legal Assistance Scheme. Anything you do say will be recorded and may be given in evidence.
Philippines
In the Philippines, according to the PNP (Philippine National Police) rules of arresting any person they are obliged to say the Miranda Warnings translated from English. The warning given, in Filipino, is as follows:
Ikaw ay may karapatang manahimik (You have the right to remain silent.)
Ang mga iyong sasabihin ay maaring gamitin bilang ebidensya laban sa inyo sa korte. (Anything you say can be used as evidence against you in court.)
Ikaw ay may karapatang kumuha ng isang abogado. Kung ikaw ay hindi makakuha ng abogado, ang korte ang matatakda para sa iyo. (You have the right to an attorney. If you can't get one, the court shall provide for you.)
Switzerland
Article 158 of the unified Swiss code of criminal procedure, which is to enter into force by 2011,establishes that the results of an interrogation may not be used unless the accused has been informed that
he/she is the subject of a criminal investigation for some specific infractions,
he/she has the right to remain silent and to not cooperate with police,
he/she has the right to legal representation by a private or state-funded attorney, and
he/she has the right to request the services of an interpreter.
The cantonal codes of procedure, which remain in force until 2011, generally contain similar provisions.
Source:Miranda Warning
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