One of the most common questions I get asked when I get a phone call from somebody who has recently been arrested is “can my case be dismissed if the police did not read me my rights when I was arrested?” The answer to that question requires an understanding of the Fifth Amendment to the United States Constitution. Everyone has heard of the Fifth Amendment, especially because of television crime shows, but let’s take a closer look at why the Fifth Amendment is important, what it is and what it does.
The Fifth Amendment creates a number of rights that apply to people facing criminal and civil legal proceedings. First, it guarantees a citizen the right to a grand jury. Second, it forbids “double jeopardy.” Third, it requires that “due process of law” be part of any Court proceeding that denies a citizen “life, liberty or property.” Fourth, it requires that the government compensate a citizen when it takes their private property for public use. Fifth, if protects citizens from “self-incrimination.” That last Fifth Amendment right, the right against self-incrimination, is the one that is commonly associated with the “Miranda Rights.” Self incrimination is basically when you make a statement that exposes yourself to legal or criminal responsibility. Think of it as making a statement that ends up being a confession. It’s when you are admitting to a crime, or making a confession. The Fifth Amendment protects citizens from being forced or coerced to testify against themselves. Self-incrimination is prohibited by the Fifth Amendment to the United States Constitution. So when you hear that someone has “taken the Fifth,” this means that they are refusing to testify in court or talk to the police. This right against self-incrimination is one of the basic principles of American Constitutional Law. It’s the absolute right to remain silent when you are being questioned by the police. But just like any other constitutional right, this right is not absolute. There are limitations.
The seminole case that deals with the Fifth Amendment is the U.S. Supreme Court case of Miranda v. Arizona. Arguably the most well-known, or most mentioned, criminal case. Let’s talk a little about this Supreme Court case so we can get a better understanding of what this case did and how it applies to today. Miranda v. Arizona was actually four different cases involving custodial interrogations that were consolidated into one case. The first case involved Miranda and that’s why it became known as the Miranda case. But it actually involved four different cases involving criminal prosecutions and custodial interrogations. In all cases, the defendants were arrested by the police, taken down to the police station, and interrogated for several hours. All of the defendants made confessions to the police that prosecutors tried to use against them in court. Prior to this case, the right against self-incrimination was thought of as applying only to proceedings in court. But in this case, the Supreme Court extended and applied the 5th Amendment to proceedings that happened before the case went to court. The court applied the right against self-incrimination in the 5th Amendment to all criminal proceedings that begin once a criminal defendant is deprived of their freedom of action. And here is where we find the main limitation in Miranda. The rights afforded in Miranda apply to custodial interrogations. You are in custody if you are deprived of your freedom of action in any significant way. It doesn’t matter if the interrogation occurs in the jail, at the police station, at the scene of a crime on a busy street, or in the middle of nowhere. If you are not free to leave, then you are considered to be in custody and that’s when the Miranda warnings have to be given. Once it is established that you were in custody and the police start questioning you, in order for the prosecutor to be able to use the statements that you make to them in court, the police have to read you your Miranda Rights. Those rights have to warn you that you have the right to remain silent. If you say anything what you say can be used against you in a court of law. You have the right to consult with a lawyer and have that lawyer present during any questioning. If you cannot afford a lawyer, one will be appointed for you if you so desire. If you choose to talk to the police you have the right to stop the interview at any time. Very rarely have I seen TV shows mention this last warning. And this is very important because if you are ever questioned, you have the right to demand that they provide a lawyer to you free of charge before answering any questions. Once you assert that right, the police must stop all questioning until and unless they provide a lawyer for you. You have the right to demand a lawyer at any time during the interrogation. From my experience, I don’t know if I have ever seen the police actually provide a lawyer at this point once it is requested by the defendants.
So going back to the beginning of this article, which is the point of this article, the answer is no, your case cannot be dismissed simply because the police did not read you your rights when you are arrested. Whether your rights were read to you only applies to situations in which you are in custody and the police start asking you questions. When that happens, they have to read you your Miranda rights. If they read you your Miranda rights and you start answering questions, then they can use your answers against you in court. But if they don’t read you your rights and they start asking you questions, the statements you make during the questioning cannot be used against you in court. The case will not be dismissed only the statements will not be allowed to be used against you in court.
James Dimeas is an award-winning criminal defense lawyer with over-27 years of experience handling criminal cases throughout Chicago, Cook County, DuPage County, Kane County and Lake County. Expertise named James Dimeas a “Best Criminal Defense Trial Lawyer.” James Dimeas was been named a “Best DUI Attorney.” The American Institute of Criminal Law Attorneys named James Dimeas a “10 Best Attorney for Client Satisfaction.” The American Society of Legal Advocates named James Dimeas a “2018 Top 100 Lawyer.” The National Trial Lawyers named James Dimeas a “Top 100 Criminal Defense Trial Lawyer.” The National Academy of Criminal Defense Attorneys gave James Dimeas the “Top 10 Attorney Award for the State of Illinois”. Attorney and Practice Magazine gave James Dimeas the “Top 10 Criminal Defense Attorney Award for Illinois.” James Dimeas is rated “Superb” by AVVO, the highest rating possible for any Criminal Defense attorney in the United States.
If you are facing criminal charges you can contact James Dimeas anytime for a free and confidential consultation. You can always speak to Mr. Dimeas personally by calling him at 847-807-7405.
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