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Custodial interrogation is when both of the following conditions are true:
the police are asking the detainee questions, and
the detainee is not free to leave
If a police officer accosts a person on the street and asks a question, there is no custodial interrogation because the person can walk away. Or if a police officer arrests a person and does not ask the detainee anything, there is also no custodial interrogation because the detainee is not being questioned. People are entitled to Miranda warnings only when they are both in custody and being interrogated.
Typically, police read people Miranda rights following an arrest. In a heated arrest situation, police usually read the following Miranda warnings
You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense.
If the suspect has already been booked and there is less of a rush, the police may read a lengthier Miranda statement, such as:
You have the right to remain silent and refuse to answer questions. Do you understand?
Anything you do say may be used against you in a court of law. Do you understand?
You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future. Do you understand?
If you cannot afford an attorney, one will be appointed for you before any questioning if you wish. Do you understand?
If you decide to answer questions now without an attorney present you will still have the right to stop answering at any time until you talk to an attorney. Do you understand?
Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney present?
Whenever the police fail to read Miranda warnings prior to custodial interrogation, the court can disregard anything the detainee says. Even if the detainee gives a confession or says something incriminating during custodial interrogation, the defense attorney may able to “suppress” these statements as evidence if the police did not administer the Miranda warnings.
Juvenile Miranda rights
Under C.R.S. 19-2-511, children subjected to custodial interrogation for delinquent acts actually have extra rights that adults do not have. In general, children under 18 must have either a parent, guardian, custodian, or defense attorney that was both:
present at the custodial interrogation, and
advised of the Miranda rights
If a parent, guardian, custodian, or defense attorney is not present, then generally no statements the child makes is admissible. The child may choose to “waive” Miranda rights and submit to police questioning, but this waiver is valid only if a parent, guardian, custodian, or defense attorney is present.
Example: Joe is 17 years old and is arrested for petty theft in Pueblo. The police book him at the Pueblo Youth Services Center and read him his Miranda rights, and Joe says he understands his rights. The police then ask Joe if he stole, and Joe confesses. However, Joe’s confession may not be used as evidence against him since neither of the following people was with him to hear the Miranda warnings and be at the interrogation:
his legal or physical custodian, or
his private defense attorney or public defender
Even though Joe may have seemed mature, his statements are inadmissible as evidence because the police failed to make sure that one of the aforementioned people was with him.
Note that there are three exceptions where a juvenile’s statements may be admissible as evidence even if he/she did not have a parent, guardian, custodian, or defense attorney present during the Miranda warnings and custodial interrogation. These are:
the juvenile is emancipated,
the juvenile is a runaway from another state and is old enough to understand what is going on,
the juvenile lied about being 18, and the police in good faith believed it
Michael Becker has over a quarter-century's worth of experience as an attorney and more than 100 trials under his belt. He is a sought-after legal commentator and is licensed to practice law in Colorado, Nevada, California, and Florida.