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When are police required to give the Miranda warning?

Life as a person under the rule of law doesn't come with a handbook. That's unfortunate. The volumes of laws on the books in New Jersey and at the federal level fill libraries – literally. Some of the fundamental rules are codified in the Constitution and Bill of Rights, but not all. Over the course of two centuries, some have been added and refined. How can you possibly know what you need to know, and when?

The rights that are perhaps most important for private citizens in the context of the criminal justice system are those spelled out as part of the Miranda warning. You know the gist. You have the right to remain silent and the right to have an attorney present. But as we have noted before, to protect your rights, it's important for you to be proactive.

Don't wait for police to tell you

If you have never had a serious encounter with the police, you might not know that the balance of power is against you. Yes, police are required to read you your rights, but you would be wrong to think they are obliged to do that before anything else. The truth is, they are only obliged to make you aware of your Miranda rights before formally questioning after you are in custody.

What does "in custody" mean? It means the significant deprivation of personal freedom. And how is "significant" defined? That can be a matter of interpretation. Someone stopped for a suspected traffic violation might feel they are in custody, but maybe that's not the case. That suggests that the best way to know is to ask directly, "Am I in custody or under arrest?" If the officer says no, then a Miranda warning isn't required. Anything you say could be evidence against you.

Importantly, while it might not always be to your advantage to do so, you still have the right to exercise your right to remain silent if you're not in custody. But, if you choose to do that, do it respectfully and clearly.

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