Police violate your constitutional right to remain silent, known as your Miranda rights, only if three things all happen:

1.They don’t read your rights, and…

2.Then they question you…

3.While you’re in police custody.

If all of those apply, any statement you make can be thrown out of evidence. So prosecutors and police try to argue that at least one of those three points doesn’t apply to your case.

Believe it or not, in court, war can be waged over whether you were in custody.

The Danger of Misunderstanding Miranda Custody

Many people go to the police station, talk with the police, make a statement that gets them charged with a crime, then find out to their shock the police didn’t have to read them their Miranda rights because they weren’t in custody.

“Custody” is actually a legal term. It doesn’t necessarily mean you’re under arrest. Strangely, it doesn’t include ordinary traffic stops.

How Judges See Custody

To make a determination whether you are in police custody, the judge looks at the whole picture. No one factor wins or loses—and the truth is, it can be a close call.

Here are the basic factors judges use to evaluate if you’re in custody when making a statement:

  • The place of the interview. Here’s a shocker: voluntarily going to the police station for a meeting can work against you. But being in a back room behind a locked door might convince a judge you were in custody.
  • Whether you were free to leave. A defining aspect of custody is restriction on your movement. If you ask to leave and they say no, you’re probably in custody. But it can be more subtle: during a break in the meeting, were you followed to the bathroom by an officer who awaited your exit to escort you back to the interview room? Seems like custody.
  • Length of the interview. In general, the longer it is, the more likely this factor favors custody. But there again, if you just stick around and keep on talking, a judge could decide you weren't in custody.
  • The tone of the meeting. This covers a number of facts, but the most important one is probably whether officers acted accusatory, like telling you they had the evidence to convict you but you just needed to help yourself by telling them what happened. The number of officers present to form an intimidating presence is a factor. Pressuring you to make a statement and even outright threats to convict you at all costs and urge as much prison time as possible can come out of these interviews. Those are indicators of custody.

Let a Professional Figure This Out

If you’re reading this wondering if you should go to a police interview, look before you leap. Talk to an experienced criminal defense attorney first. If you’re reading this feverishly wondering if the statement you made will come into evidence, talk to a qualified criminal defense lawyer now.

Your right to a lawyer is part of the Miranda rights. Rights are intended to be used. Take advantage of these critical rights. Start a live chat right where you are so we can talk about assessing your situation and building the best defense possible—and hopefully preventing a prosecution at all.


Rob Usry
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Rob is a Spartanburg personal injury lawyer. Rob also practices as a workers' compensation attorney.
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