Legal Question in Constitutional Law in Texas

Re: right of silence?

The right to remain silent kicks in only upon arrest. However, "arrest" does not mean what most laypeople probably believe. In the eyes of the law, a person is under arrest when (and I am *really* oversimplifying here) when his fredom of movement has been significantly curtailed and a reasonable person in his shoes would understand that he was not free to leave. Thus, a person can be under arrest even before the police officer says he is under arrest, before being handcuffed, etc. Most importantly, a person can be under arrest before the Miranda warnings are read.

Giving the warning is a requirement upon arrest, but many laypeople incorrectly believe that it is the definition of when an arrest takes place. The reality is that police sometimes wait too long to give Miranda warnings, and any statements they receive after the suspect is legally under arrest and before the warning is given must ordinarily be excluded. In many criminal cases the lawyers have to argue about precisely when the defendant was arrested so that the court can decide which statements can be admitted and which must be kept out of evidence.

Re: right of silence?

Miranda warnings are required when the 'spotlight of attention' focus upon an individual as a suspect in a criminal investigation AND, law enforcement determined to question that individual concerning the crime. This is true whether or not the individual has been arrested, and the familiar warnings are required only if there is to be questioning. If law enforcement does not take a statement from the individual, then the Miranda warnings are not required.

Miranda protects citizens against incriminating statements given to law enforcement when they are suspects in a criminal investigation.

One may 'waive' or 'give up' his/her Miranda rights.