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On Behalf of | Mar 23, 2021 | Firm News


MIRANDA V. ARIZONA (Miranda) is the most famous criminal case of all time.

While the Miranda case is famous, it is also way misunderstood.

The Public believes that Miranda stands for the ideal that when a police officer contacts a suspect and asks questions, the suspect is entitled to be first advised that

  • · he has the right to remain silent;
  • · that anything he says can and will be used against him in a court of law;
  • · that he the right to have counsel present to assist him; and
  • · that if he cannot afford counsel, then counsel will be appointed at the State’s expense.

Please note the four specific advisements.

  • Under the first two advisements, Miranda involves the right to remain silent.
  • Under the second two advisements, Miranda involves the right to have the assistance of counsel.

At its heart however, Miranda involves police questioning and the prosecutor’s use at trial of the suspect’s incriminating statements in response to police questioning.

Miranda recognizes that custodial interrogation of a suspect is not a fair playing field. A suspect in custody who is questioned by the police will be under an inordinate amount of pressure to answer such questions.

Miranda attempts to level the uneven playing field. Miranda requires that a suspect in custody should be explained his/her rights and before any questioning takes place and that before questioning, the suspect should knowingly and voluntarily waive these rights.

Miranda requires that if the police obtain statements from custodial interrogation of a suspect, without first providing the suspect with the proper advisement, the People should not be allowed to present such statements to the jury during their case.


In over 99% of all encounters however between a police officer and a suspect, the officer can speak with the suspect without ever bothering to provide a Miranda advisement. Miranda only applies in the rarest of police encounters.

Miranda requires that two prongs be met before a police officer is required to give a Miranda advisement.

  • The first prong is that the defendant must be in custody.
  • The second prong requires that the police officer initiate questions.

The second prong is relatively easy to understand. The police must ask questions or make statements that invite a response from the suspect.

The first prong is quite difficult to understand. For Miranda to apply, the suspect must be in “custody”. The idea of custody for Miranda purposes can be difficult to comprehend.

Under Miranda, the custody must be immediate and significant.

Custody involves not only restraining a suspect’s freedom of movement, but the restraint must be so significant that a reasonable person would believe that he/she was under arrest.

Actions that may equate to custody include:

  • Handcuffing a suspect.
  • Placing a suspect in the back of patrol car.
  • Ordering suspect to sit or lie down on a sidewalk.
  • Pulling a gun on a suspect.
  • Ordering a suspect out of a vehicle or residence.
  • Not allowing a suspect to leave the police station.
  • Threatening a suspect with loss of a child.