Originally Posted by VideoPaul
The guy who said to ask if you are under arrest and then ask if you are free to go was EXACTLY RIGHT! I spent time in police work, and there's a little GOTCHA that few people know...
When you are questioned before you are placed under arrest, you are giving information FREELY and VOLUNTARILY and ANYTHING you say can and will be used against you. Miranda rights do not attach, and you are not required to be advised of your rights, until such time as you are under arrest. SOOOOO many times guys in my department would use the "just asking questions" part of things to gather PROBABLE CAUSE to then arrest you. Then your miranda rights attach, but it's also too late, you have already freely and voluntarily given then the information they needed. You cannot take it back, your miranda rights were never violated, and you're stuck. Give your identification, which you are required to do, then LAWYER UP!! If you ask them if you are under arrest, they say no, we're just asking questions, tell them you have nothing to add to the discussion. If they press you, continue to ask of you are under arrest and if not are you free to go, and then ask for an attorney.
You may have a trip delayed, but preserving your rights is FAR more important.
To the poster asking why someone would be defiant: If you're not, you can get railroaded into problems beofre you have the first damn clue what happened. Friendly questioning turns into an arrest so fast after you open your mouth you'd need a videotape replay to figure out how you got hosed. And the police are PERFECTLY FREE to use deception to gain information, that has been upheld by the courts for decades. Until you are actually under arrest, they can feed you any cock and bull story that crosses their minds.
It's a game, it's a complicated game, and once you give your identification, you are free to demand an attorney before answering ANY questions. Until then, SHUT THE HELL UP. You can thank me later.
--Paul
Not exactly a clear interpretation of Miranda v Arizona. Several factors come into play to determine whether Miranda is required. The "just asking questions by law enforcement officer" is not the test to determine Miranda warnings. The two larger issues are, the environment you are questioned (Has my freedom of movement been restricted by the law enforcement officer?, if yes, then Miranda applies) this is based on what a reasonable person being questioned may think, and the scope of the questioning (identity, where do you work?, Miranda does not apply, although questioning for the particular crime does require Miranda, no matter the setting). If your colleagues at your department used the "just asking questions" tactic, they were not following Miranda, and, I imagine, lost the statements in a motion to suppress hearing.
In addition, witnesses do not have 5th Amendment protection. Which means, they can be compelled to testify.