Mike Kenny, attorney, Bauer, Crider, and Parry: So, the recap is the Miranda warnings themselves have five specific portions that must be read to a suspect. They have to be told they have the right to remain silent. They have to be told that they have a right to an attorney. They have to be told that if they can't afford to hire one, one will be appointed for them. They have to be told that they can exercise those rights at any time.

The setting where Miranda warnings have to be read: it has to be in a custodial interrogation. Custodial meaning the person has to have his freedom of movement limited in .a manner that is objectively reasonable. Like people would expect. “Yeah, I can't go. I’m not free to go. I’m answering these questions.” Now, that particular aspect is a very heavily litigated aspect. Because there are times that the officer’s going to say, “Hey, listen. He wasn’t in custody. I was just, you know, I was just walking up to him and we are having a consensual encounter. This was just a normal conversation.”

So, the inquiry to whether, or not. a person is in custody is very fact-specific and they look at the manner of questioning. They look at whether the person was told he or she was free to leave. Whether the officers came up with some show of force that would cause a reasonably objective person to believe that he wasn't as free to turn around walk away, or refuse to answer questions. And the courts are going to look at all that to determine whether, or not, that first box has been checked. “Is he in custody?”

And then the second box, which is a little bit easier - interrogation. You know? Has he been asked questions designed to eliminate an incriminating response? Well, they look at what was asked? How was the conversation made? Is it that Christian burial speech which was clearly designed to get this person in the backseat to feel remorseful? And say, “All right. Let me tell you where the bodies are.” That is also heavily litigated.

But the biggest issue is is the person custody or nor? Because putting handcuffs on you isn't the only time a person is in custody. And these Miranda warnings matter because what happens is that they're not read when they should have been, an admission to a crime is kept out of evidence. Or, not even an admission to a crime, but maybe an admission to being present when a crime was committed. Sometimes, you know, that's very important. Obviously, if a prosecutor is going to convict you of a crime they’ve gotta prove that you were there. And just being there puts you one step closer to committing the crime.in a law-enforcement officer’s perspective, perhaps.

So, you get to keep all of that out, if a person should have been warned, and they weren’t. It doesn't make the crime go away. It doesn't mean that the arrest was bad. All it means is that the answers that you may have given in response to interrogation should have been warned. And because they weren’t, the cure is we keep those statements out. That's the punishment. It’s basically pursuant to the exclusionary rule, they keep that set of factors out of evidence. A.nd this comes up in every single crime there is. It comes up in DUI arrests. It comes up in robbery arrests. It comes up in homicide cases. Sexual battery cases. I can't tell you how often in a sexual battery case the investigation involves two people. Most the time, people don't commit a sexual battery in the middle of a football field. Most the time it happens, most crimes,, most very serious crimes, happen away from public view. So, you have one witnesses account, the victim, perhaps. And then you have what the defendant said. What the suspect said. And there are plenty cases where a suspect may be thinking he’s doing himself a lot of good by saying, “I didn't do anything. I didn't touch her. She was there, but we didn't have sex.” But, maybe, he think that's very helpful. But it’s not helpful if a DNA test is performed, and they actually find the suspect’s DNA. That just shows that he lied. And lying, is maybe enough for this prosecutor to present to the jury that this victim accuses him of a sexual battery. This person lied about a consensual encounter. And this prosecutor would ask a question, “Why on earth would he lie about had it not been because he was afraid of getting caught?”

And that's why it's crucial, when a person gets contacted by law enforcement, and they say, ”Hey, listen. We’re investigating something. We need to answer some questions.” The first thing you do is, is tell him. “Hey, listen. I don’t want to answer any questions right now.” And you contact a lawyer. You find a lawyer. You tell the lawyer what's going on, and then that lawyer would reach out to the law-enforcement officer to get an idea. “Is my client suspect? Are you investigating his potential involvement in a crime?” And then, we can make an educated decision on whether or not we’re going to answer any questions, or answer no questions at all.

B: So, I mean, the best advice I’m hearing out of all this, is a experienced criminal defense attorney, Mike. Those two, you know, first important factors: the right to an attorney, and then the right to remain silent. Those are the things that you recommend most. Right? Get the attorney.

M: Sometimes, yes. Everybody in the United States has a shield. And that shield is the right to a lawyer, and that right to remain silent. Everybody has that shield. The problem is that shield’s no good if it's sitting on your back and you're not using. So, the Miranda warnings are designed to let you know you've got the shield. You can use it if you want. But the people have to understand that you’d better use that shield.

B: Right.

M: It’s much better to decide later, after contemplation of looking at what's at stake, and looking at what the facts are, to decide whether to answer a question. Than on a whim; not use your shield and just walk into the lions’ den, as I’ve said.

B: All right. You’ve been listening to Mike Kinney floridadefense.com podcast. That concludes our series on discussing the Miranda rights.