If you are in police custody in Colorado, law enforcement may not interrogate you until they read you your Miranda rights – that you have the right to remain silent and have an attorney.
Then if you invoke your Miranda rights by stating you choose to stay silent or wish to speak with a lawyer, the police may not question you until you have an attorney present.
A common misconception is that police must read you your Miranda rights if they arrest you. They do not. You are entitled to a Miranda reading only if the police then try to interrogate you while you are in custody.
If the police fail to read your Miranda rights before subjecting you to “custodial interrogation,” any statements you make afterwards may be suppressed and not used as evidence against you at trial.
For more information keep reading or listen to our podcast on Miranda rights in Colorado.
Below, our Denver Colorado criminal defense lawyers discuss the following frequently asked questions about Miranda rights for Colorado residents:
- 1. What are Miranda rights?
- 2. When am I “in custody?”
- 3. What is in the Miranda warning?
- 4. Can I waive my Miranda rights?
- 5. If I waive my Miranda rights, can I change my mind later?
- 6. Should I waive my rights?
- Additional Reading
1. What are Miranda rights?
Miranda rights stem from a United States Supreme Court case, Miranda v. Arizona. The case decided that if you are subject to custodial interrogation, you are entitled to warnings concerning your constitutional rights.
These rights are found in the 5th Amendment of the U.S. Constitution.1 They apply in all criminal cases. Federal Miranda rights have also been codified into Colorado state law.2
People subjected to custodial interrogation must have their Miranda warning read.
2. When am I “in custody?”
You are “in custody” when:
- you are not free to leave; or
- you are deprived of freedom of action in a significant way.3
If you are under arrest — for example, handcuffed and taken to jail — you are unquestionably “in custody.” Examples of when you are not in custody include:
- during a traffic stop;
- being asked to sit in the car simply for your safety or the officer’s safety; or
- volunteering to be taken to the police station (but before questioning).
What is a custodial interrogation?
The phrase “custodial interrogation” refers to the situation where:
- you are in custody; and
- you face questions that would likely produce an incriminating reply.
Colorado courts look to the “totality of the circumstances” to determine when you are subject to a custodial interrogation.4 The following graphic shows some of these factors.
When considering all of these factors, courts ask what a reasonable suspect would believe about the situation.5 If a reasonable person would not believe the situation to be custodial, Miranda warnings are not required.6
3. What is in the Miranda warning?
The case of Miranda v. Arizona did not set forth specific words to be stated but rather the rights to be described to you.7 A typical Miranda warning contains the following general language:
- You have the right to remain silent.
- Anything you say may be used against you in a court of law.
- You have the right to talk to a lawyer and have them present with you while you are being questioned.
- If you cannot afford to hire a lawyer, one will be appointed to represent you.8
What happens after the rights are read?
After the Miranda warnings are read to you, you are usually asked if you understand those rights. Law enforcement will then usually ask if you wish to speak with them voluntarily and without legal counsel present.
To invoke your Miranda rights – which you should – you must make an affirmative statement, like:
- I choose to remain silent, or
- I want to speak with a lawyer.
Remaining silent and saying nothing is not enough. Simply staying quiet could be used against you in Colorado courts if you do not invoke your rights.9
4. Can I waive my Miranda rights?
It is not advised, but you may choose not to use your Miranda rights.
An “express waiver” is when you affirmatively say you agree to talk to the police. Many departments will then ask you to sign a written waiver where you explicitly waive your Miranda rights.10
An “implied waiver” is when you proceed to speak to police without affirmatively saying you choose to waive your Miranda rights. For an implied waiver to be valid, your statements must be:
- intelligent,
- knowing, and
- voluntary.11
5. If I waive my Miranda rights, can I change my mind later?
Yes. If you waived your rights before, either expressly or by implication, you are allowed to change your mind at any time. The rights will then apply moving forward.12
Statements made before you invoked Miranda may be admissible against you at trial, but statements made in violation of your rights after may not be admissible.
6. Should I waive my rights?
You should not waive your Miranda rights if you
- are suspected of a crime or
- are asked questions that can incriminate you.
If you affirmatively invoke your right to remain silent and ask for a lawyer, your silence cannot be used against you at trial. With the help of a Colorado attorney, you can make sure your rights are protected and potentially avoid charges against you.
Additional Reading
For more in-depth information, refer to the following scholarly articles:
- Miranda Rights: Implications for Juveniles With Disabilities – Intervention for School and Clinic.
- Miranda Right-to-Counsel Violations and the Fruit of the Poisonous Tree Doctrine – Indiana Law Journal.
- Why People Waive Their Miranda Rights: The Power of Innocence – Law and Human Behavior.
- Miranda’s Social Costs: An Empirical Reassessment – Northwestern University Law Review.
- Are Police Free to Disregard Miranda? – Yale Law Journal.
Legal References:
- Miranda v. Arizona (1966) 384 U.S. 436. (“Prior to any questioning the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.”). United States Constitution, Amendment V. (“No person shall . . . be compelled in any criminal case to be a witness against himself . . . .”).
- CRS 16-3-406. House Bill 23-1155.
- According to the U.S. Supreme Court, this requirement is psychological as much as it is physical. Miranda, endnote 1.
- Miranda, endnote 1. (“…the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean 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.”).
- See Oregon v. Mathiason (1977) 429 U.S. 492.
- See U.S. v. Bassignani (9th Cir., 2009) 575 F.3d 879.
- Florida v. Powell (2010) 559 US 50, 130 S.Ct. 1195 endnote 7.
- Miranda, endnote 1. (Describing the rights which must be stated to a suspect).
- Berghuis v. Thompkins (2010) 560 U.S. 370. See also People v. Cerda (Colo. 2024) Supreme Court Case No. 24SA23.
- Same as 13.
- See Berghuis, endnote 17 (a waiver “must be voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception”).
- Same as note 11.