Is “Miranda” Necessary

Following up on last week’s initial contact post, let’s look a little deeper into that encounter. Many people wrongfully believe that a person must receive the well known “Miranda” warning when they are questioned by law enforcement agents or police. While this can get far more technical than I intend in this post, let me say that if you have not been arrested then you will not be “Mirandized” and the conversation will generally be considered to be consensual by the court. It gets a little more murky, but if you go to the police station or FBI or other law enforcement office to talk with them, even if you felt compelled to go, but are not under arrest, this will also be considered a consensual conversation and what you say will likely be used against you. Let’s take this one step further. Assume you are challenged that what you are saying is not true, or that you are not believed, but you are free to leave. Your best option is not to try to explain your prior statements but to terminate the “interview” and leave. Whether you have told the truth is irrelevant at this point. Any attempt to clarify will be written up as a change in your story, that you were giving different stories and were not being truthful with the officer, detective or agent. The constant thread in these posts will be DO NOT TALK WITHOUT YOUR LAWYER PRESENT. I never recommend clients make any statement. There truly is no need to do so and the unwanted consequences are far greater than remaining silent.