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[Your name] are under arrest for [the crime]. You have a right to remain silent. If you give up your right to remain silent, then everything you say can and will be used against you in a court of law. You have a right to legal representation. If you cannot afford an attorney, one will be appointed for you. Do you understand these rights?

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Your Right To Remain Silent

About Your Right To Remain Silent

The Constitution of the United States of America protects your right to a speedy trial, to due process of the law, and to remain silent at a trial and refrain from giving testimony that may incriminate you. In 1966, the United States Supreme Court ruled on a case (Miranda vs. Arizona, 384 US 436) that effected law making it mandatory for Police to notify you of your Constitutional rights, and that case together with others have better defined law about your right to remain silent and your right to legal counsel.

Police are required to provide people whom are being placed under arrest with a statement of rights, which has become known as a "Miranda warning" or "Miranda Rights", named after the precedent case, Miranda vs. Arizona.

Miranda Rights - Your Notice Of Your Rights

The process through which you are informed of your Miranda Rights is called notification. You are assumed to have been properly notified of your rights if they are read to you or stated to you. Police often read Miranda rights from a card so as to avoid omitting any portion.

A Miranda statement

The exact wording used in a Miranda statement may differ by jurisdiction or police department, but the message should provide the information listed below.

  1. The right to remain silent.
  2. The right to legal counsel.
  3. The right to have an attorney appointed.
  4. The right to have an attorney paid for if unable to pay the attorney (i.e. destitute).

Of those rights, your right to legal counsel is the most critical. When you invoke your right to legal counsel and ask for an attorney, police have reached the line that they should not cross.

Questioning Preliminary To Arrest

Whether information gathered through police questioning of a criminal suspect will be admissible in a court of law depends greatly on how that information was acquired. If the information was freely and voluntarily given by the criminal suspect to the police, whether the suspect was read his or her Miranda rights, the information will then almost always be admissible in a court of law and used as evidence against the defendant.

As well, any information acquired by means of a legal search and seizure preliminary to an arrest will likely be admissible at trial unless your attorney seeks to suppress that information for cause (some reason which the court finds acceptable as an excuse for not including information in a trial).

However, if the search was illegal, then the information will likely be inadmissible unless other exceptions apply. In most instances, information gathered through illegal means will be inadmissible or can be suppressed upon court order. For example, evidence gathered through coercion is inadmissible. Even so, somebody has to tell the court that the method through which information was obtained was illegal - that "somebody" is usually your criminal defense attorney.

Questioning During Interrogations & Miranda Rights

Under the Miranda rule, the courts will look at the interrogation procedures for evidence of a Miranda violation. While courts consider whether the defendant's right to remain silent was violated, courts take a much firmer position when a defendant invoked his or her right to legal counsel, and was subsequently denied that right.

Courts use another rule, called the Massiah Rule to test whether the defendant's rights have been violated at another time, such as after a defendant has been formally charged and released, and is then subsequently questioned.

Custody Requires Miranda Rights

A Miranda warning is required by law if police are interrogating a suspect, and whenever a suspect is taken into custody or detained. A person is in custody whenever they are restrained in such a manner that they cannot leave the area such as when they are incarcerated in jail, locked in the back of a police squad car, or handcuffed to a car door. A person is sufficiently detained when the circumstances are such that any reasonable person would conclude that they cannot escape the situation such as when several police officers stand in a circle around a person and block his or her escape.

When Miranda Rights Are Violated

A Miranda violation can occur in many ways. For example, if a person invokes his or her Miranda rights, but police disregard those rights, a Miranda violation has occurred. A Miranda violation is very serious; it means that your Constitutional rights have been violated.

When Miranda rights are violated, the evidence gathered is usually inadmissible in a trial. However, a request to the court must be made by the defendant (through his or her attorney) to suppress that illegal evidence, otherwise it can go unchecked and be used against the defendant. Even if evidence is suppressed, it may make its way into a trial because even suppressed evidence can be used to impeach a witness on his or her testimony to facts involving that evidence. Whenever a defendant takes the stand in a trial, they are a witness against (or for) themselves.

If the suspect waives his or her right to remain silent, then all information gathered during the interrogation may be admissible in a court of law as evidence for a conviction of the crime accused. If the defendant disputes the legal fact that he or she waived Miranda rights, the burden will be upon the prosecuting attorney to prove that Miranda was not violated. However, whether that evidence reaches a court depends on many other issues, and there are many other exceptions. Every case is different, so it is always in a person's best interest to discuss his or her case with a criminal defense attorney.

When Miranda Rights Are Not Needed

In some situations when a suspect provides information voluntarily, Miranda rights may not be required even if the person has already been arrested. If Miranda warnings are given, and the suspect then waives those rights, the burden of proof will be on the prosecution to prove that the defendant's rights were not violated.

Silence Used Against Defendant

In and of itself, silence is not evidence. Depending on when and how a right to remain silent was invoked by the supsect will determine whether or not "mere silence" can be legally used as evidence in a court of law. A Miranda warning provides a notice to a suspect regarding his or her silence, "anything you say or do can be used against you in a court of law".

Evidence is always a major consideration in every case, whether the case goes to trial, or is "pled out". A wise person will never fear invoking his or her right to remain silent and to have an attorney present. Whenever you are questioned, ask for your attorney, and then ask your attorney whether you should answer questions.

Remember: police are not responsible for informing you of all of your rights. In fact, their job is clearly the opposite - to inform you of the rights that will cause you to provide them with enough information to make an arrest of a person who will be charged with a crime and to give testimony to convict the person charged.

Initial Consultations

If you are under investigation for a crime or drunk driving offense, please call ( in the Madison area, or statewide) the attorneys at Van Wagner & Wood for a brief but professional first-impression analysis of your case. If you are seeking an attorney to represent you in a criminal case, there is no charge for your first consultation with an attorney at Van Wagner & Wood. You can also send your case information online, or email the attorneys preliminary to your meeting so that they have a general understanding of your case. Van Wagner & Wood will give you honest, straightforward, no nonsense answers that will help you to understand how the law might affect you so that you can make the necessary critical decisions.