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Your 5th Amendment Rights under the United States and Georgia Constitutions

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The Fifth Amendment right against self-incrimination is a freedom essential to our Constitution. It protects a suspect’s right from being compelled to give statements or testimony that could in fact incriminate them. This triggers Miranda v. Arizona, which is a case from the Supreme Court of the United States that requires police officers, during a custodial interrogation, to advise the accused of their rights. Such rights include:

  1. The right to remain silent;
  2. Anything the accused says can and will be used against them in a court of law;
  3. The right to an attorney; and
  4. The right to have an attorney appointed by the court if one cannot afford an attorney.

If these rights were not given to the accused, and the statement given to the police by that individual was not spontaneous and voluntary, then the statement could not be used against them by the prosecution at trial. However, if a police officer lawfully read the suspect their Miranda rights, and they decided to voluntarily speak to that officer about the events in question, whatever statements made by the accused to the police could and likely would be used against them at trial.

In order for an individual to waive their Miranda rights, they must have been read the rights stated above, understood those rights, as well as the consequences of those rights, and then decided to speak to law enforcement about the incident in question.

Under Georgia law, once a suspect has waived their Miranda rights and begins speaking to law enforcement, they can later decide to invoke their rights at any time during police questioning. That means that after a suspect has decided to voluntarily speak to police, they can then decide that they want to stay silent and invoke their right to an attorney. To do this, the accused must be clear and adamant about wanting to end questioning or requesting a lawyer. If they tell the police that they are done speaking to them or that they want a lawyer, law enforcement must stop interrogating them immediately.

If the accused is not clear about their wishes to stop questioning, police can continue to question them until it is made clear that they want interrogation to cease or that they want to speak to an attorney. Even if the accused has refused to answer certain questions posed by police, this will not stop any questioning by an officer. In order to protect one’s Fifth Amendment rights, they must make it abundantly clear that they no longer want to speak to police or that they request a lawyer. Law enforcement must stop questioning an individual at this time.

Contact Us

Being questioned by law enforcement can be a stressful event in anyone’s life and it is always recommended to speak to an attorney before that occurs. At the Law Offices of W. Scott Smith, our lawyers are trained to know every aspect of your constitutional rights. We are also experienced with police interrogations and investigations and are trained to protect our clients’ rights throughout this process. If you or a loved one has been interrogated by police or has been contacted to schedule a police interview, please call our office today at 404-581-0999 for a free consultation.

Miranda Rights

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MIRANDA RIGHTS

By Andrew Powell Esq.

Almost everyone has seen a crime television show and heard the infamous phrase “you have the right to remain silent, anything you say can and will be used against you in the court of law, you have the right to an attorney, and if you cannot afford one an attorney would be appointed to you.” However, most people do not know when or why this phrase is so commonly used by police. In 1966, the United States Supreme Court decided to require law enforcement officials to read this list of rights to someone who has been taken into custody. These rights are known commonly as your “Miranda Rights.”

Purpose Of Reading The Miranda Rights

The United States Constitution and specifically the Fifth Amendment guarantees anyone who has been arrested the right not to incriminate themselves. Plainly put, an individual does not have to talk to police when they have been arrested. The Constitution and our form of justice requires that the government carry their burden and prove to a judge or jury that someone charged with a crime is guilty beyond a reasonable doubt.georgia-juvenile-defense

Too often law enforcement officials become overzealous with their search for the truth and overstep the Constitutional bounds in their pursuit. It may not surprise you that police use coercive tactics or even lie to someone to get them to confess to a crime. Miranda warnings are a safeguard to protect against those who may cross that Constitutional boundary. The government must show the court that you were read your Miranda rights and that you waived your rights guaranteed by the Constitution.

When Does Miranda Apply To Me?

Confessions are the leading source of Miranda violations. When someone has been accused of a crime, big or small, they are often questioned in connection with that crime. Miranda rights must be read to someone after they are under arrest and before any law enforcement official asks any questions to the suspect.  Law enforcement officials have a tough job and they investigate crimes every day. Many officers are trying to make quick decisions based on little information. However, this does not allow them to just simply force people to talk to them and answer their questions.

Many times law enforcement officials will arrest someone and take them back to the police station for an interview. Generally, they will quickly go over your rights with you and ask you if you want to talk to them. If you have been charged with a crime this is where you want to stop and tell the law enforcement official that you would like to speak to your attorney.

When Does Miranda Not Apply To Me?

People sometimes think that any encounter with law enforcement requires them to read you your Miranda rights. This is untrue. Most encounters between people and law enforcement do not require the reading of your Miranda rights. As discussed above, the Miranda warnings are only required when you have been placed under arrest and the police are asking you questions regarding the crime.

Traffic stops are a common place to have an encounter with law enforcement where Miranda warnings are not required to be read to someone. In this circumstance, generally you are not under arrest and law enforcement is just going to ask you some general questions and write you a ticket.

In terms of a DUI, the police officer is not required to read the Miranda warnings. The officer may ask you to take a series of tests, known as Field Sobriety Tests or request you to blow into a machine that registers your blood alcohol content. Even though the officer does not have to read your Miranda rights to you, you have the ability to refuse these tests and refuse giving a breath sample.

Another common scenario is when law enforcement asks you to come to the station and make a statement. In this circumstance, Miranda warnings are not necessary because you have voluntarily come to the police station and are not under arrest. Remember, law enforcement is only required to give you the Miranda warnings once you have been arrested and before they initiate any questioning of you.

What Does A Miranda Violation Mean For Me?

Confessions or statements made to law enforcement will not be allowed at trial if law enforcement has not, first, read you the warnings required in Miranda. If you were forced into making a statement or the police did not read your rights to you and you then confess to a crime, whether it is a DUI or murder, that confession cannot be used against you at your trial. With your statement or confession tossed out it can help strengthen your case and possibly force the prosecutor’s office to drop the charges because they do not have enough evidence to prosecute you.

If you have been charged with crime and feel your rights were violated during the process, call our office and we can help you navigate the system. Our office has extensive experience in misdemeanors and felonies. Fighting charges with an attorney’s help is important because any conviction on your record will greatly reduce the possibility of having future charges lowered or dismissed. At the W. Scott Smith law firm we can identify where the police have violated your rights and ensure evidence will be kept out. Our firm can handle your misdemeanor or felony case with the expertise you need to save your record. Give us a call for a free consultation at 404-581-0999.