Right To Remain Silent in Wisconsin: Getting Charges Dropped
Police didn’t read me my rights, what now?
Everyone knows that if a person is arrested he or she is read his or her rights. We have all seen it on TV; a person is taken into custody, placed in the back of a squad car, and as the person is being placed in the back of the squad we see and hear the officer reading that person’s Miranda rights. So what happens if an Officer doesn’t read you your rights when you are arrested? Maybe you are never read your rights, maybe it is only after you get back to the station and you’re placed in an interrogation room? What recourse do you have?
The most typical answer is none or very little. Your Miranda Rights ensure that you do not have to say anything and that you may have an attorney present at the time of your interrogation. If a police officer does not read you your Miranda Rights it means that everything you say to the officer in response to a question may be able to be suppressed. You will notice that I said in response to a question, and that caveat is one way police officers get around reading you your rights and can still use what you say. The Courts have determined what you tell an officer during a ‘custodial interrogation’ is protected if you are not read your rights and that terminology, "custodial interrogation", has been specifically defined.
Custodial: Most simply, this has been defined as being detained by police and not being allowed to leave. If you ask to leave and the police allow you to leave the courts have determined this does not count as being in custody. However, your request to leave is not required to determine whether you are in custody. Whether you are in custody is determined by what the officers would have allowed at the time. If the officers would not have let you leave, independent of you making a request, then you are still in custody.
Interrogation: In regards to interrogation, the courts have determined that you must be asked questions for it to be considered an interrogation. If you are in the back of the squad car and you volunteer information, the courts have said that does not count as an interrogation.
In the end what does this all mean? It means that if the officer didn’t read you your rights and you simply offer information, you can be fighting an uphill battle to get that information suppressed. If instead you are arrested and say nothing, the police have no evidence. Best advice: Don't volunteer information and don't answer any questions unless you have an attorney present.