Do the Police Always Have to Read Me My 5th Amendment Rights Before They Ask Questions?

New clients often ask this question. ” Does a police officer always have to read the Miranda Rights to you before he can ask you questions.” The short answer is no. Most folks believe that they walk around protected by the 5th amendment at all times. In reality the 5th amendment and it’s protections apply only in certain situations.

For the 5th amendment to apply the defendant must be in custody. He must be detained by the police and not free to leave. Whether a person is legally detained can be a fact question determined by a judge in a motion to suppress.

If a police officer is merely asking questions of a citizen on the street then all of the answers given can come into evidence at a trial. Since the defendant wasn’t under arrest at the time of questioning there is no requirement for the officer to read the defendant his Miranda Rights. Smart detectives will often conduct “soft” interviews on the street. They may come back several times for more interviews. Often times they get contradictory answers from the suspect which can be very damaging for the defendant at trial. That’s why it is always a good idea to talk to a criminal lawyer before you ever interview with the police.