The Question Every Criminal Defense Attorney Has Heard From a Client: Can You Keep My Statements Out?

And the answer is … it depends.

The single most important time for you to have access to the advice of an experienced criminal defense attorney is when you are first suspected of a crime. Unfortunately, this is also when you are least likely to have an attorney. For example, when an officer calls you at home to ask you about an assault allegation that the officer just received. Or when an officer approaches you as you are walking in a neighborhood where a home burglary just occurred. Or when you are sitting in your car on the side of the road after a traffic stop and the officer is asking you a ton of questions about where you have been and if you have been drinking.

In situations like these a person is not likely to have quick access to an attorney. But regardless of whether you are in fact guilty or not, there can be serious negative consequences to any statements you make to the officer.

Without a doubt, one of the first things that I hear in almost every consultation that I have with a prospective new client is some variation of, “Well, the officer never read me my Miranda rights so ….” Unfortunately, the Supreme Court’s ruling in Miranda v. Arizona only prohibits the State from using statements against a defendant that are made pursuant to a custodial interrogation.

So what is a custodial interrogation? As the Court in Miranda says, “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”

If it is a custodial interrogation then the officers must provide Miranda warnings. (A conversation for another day: in Texas, section 38.22 of the Code of Criminal Procedure places additional requirements on officers.) If it is not a custodial interrogation, then no warnings are required.

The reality is that whether the statements were made as part of a custodial interrogation or not is a highly specific fact question. I have filed and argued a countless number of Motions to Suppress to argue that my client’s statements were made in violation of Miranda. I have won many and I have lost many.

Those situations listed in the first full paragraph of this blog? Examples of situations that most likely will be considered to not be a custodial interrogation. Which means anything you say in those situations will most likely come into evidence.

So my advice to you if you are a suspect of a crime, whether you believe you are guilty or not, is to be respectful but demand that you speak to an attorney before making any statements or answering any questions.