What are Miranda warnings, when do they apply, and what rights do they protect?

Having practiced criminal law for more than 25 years, and having been in law enforcement a decade before that, I find it hard to believe the issues raised in Miranda continually arise today, now almost a half century after the rule was laid down by the United States Supreme Court.

It is facially a simple rule, stated thus: "When a suspect is in custody, the police must advise him before asking any questions about the crime they are investigating that he has the right to say nothing to them without an attorney being present to advise him; that if he cannot afford to hire an attorney, one may be appointed for him by the court; and anything he says to the interrogating officers can and will be used against him in court."

In my experience, the issue comes up most frequently in determing whether the suspect was or was not "in custody" when he was questioned. The term "in custody," does not mean "under arrest." While a person under arrest is certainly entitled to the warning, whether a suspect is "in custody" or not is a fact question that will vary from situation to situation, and if that issue arises, will be determined by a judge if the defense attorney files the proper motions.

The purpose of the rule is to deter police from using tactics that violate a person's constitutional rights. If the court finds that Miranda was violated by police during questioning, it may suppress all the incriminating statements made, as well as other evidence that would not have been obtained but for the violation of Miranda.

However, a person who voluntarily agrees to answer questions posed by police is not protected by Miranda, unless and until he later invokes the right to remain silent -- or to speak with an attorney. Because many innocent people find themselves accused or convicted of crimes due to their willingness to accept the false premise that police don't make mistakes, and that if they cooperate with police they will be OK, most experienced criminal defense attorneys -- especially this one --- urge persons approached by police who are investigating a crime to refuse to anwer any questions without the presence of an attorney.