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Anything You Say While Not In Custody Could Be Used Against You

Whether you have been arrested or simply watch television, you probably know that when you are being arrested, you have the right to remain silent, and that anything you say can be used against you. You may recognize this as part of your Miranda Rights, which the arresting officer is required to read to you. If they don’t, then anything you say might be thrown out as evidence.

Knowing this, you may think that if you haven’t been read your Miranda Rights, you aren’t in any danger of saying something that can be used against you. Unfortunately, you may be very wrong about this, depending on various factors that determine whether or not you are actually in custody or being interrogated at the time that you make your potentially incriminating statements. If you are not in custody or being interrogated, then anything you say can absolutely be used as evidence against you. In fact, what you say could lead to an arrest, so although you weren’t in custody before, you are now.

The Factors that Determine Whether or Not You Are in Custody

Being formally arrested is one way to know for sure that you are in custody. Usually, your Miranda Rights will be read to you at this time, and you will have no question about it. Yet, this is not the only way to be considered to be in custody, and many people end up arguing in court about whether or not they were actually in custody at the time of their statements.

Beyond actually being arrested and taken into custody in the way that you typically picture the situation, the other factors that could indicate whether or not you are in custody include where you were when you made the statement, whether or not you were free to leave, and whether you were being interviewed or interrogated, which can also be debatable.

Your Location At the Time of Making a Statement

Your location at the time of making a potentially incriminating statement is an important factor in determining whether or not you were in custody. A common example of situations where people think they are protected, but are actually not, is in the everyday traffic stop. If a police officer pulls you over for any reason, they do not have to read you your Miranda Rights, even if they ask you to get out of your vehicle. The police may even end up searching you or your vehicle, without ever reading your rights, because you are not yet in custody.

Anything you say to them, prior to being taken into custody, is likely to be used as evidence or at least as a reason to formally arrest you, if they didn’t already have one.  In cases where the police brought you to the police station to interview you, you may be able to argue that you were in custody. Your argument would be even stronger if you were put in a locked room.

Whether or Not You Are Allowed to Leave 

A major component of being in custody is whether or not you are allowed to leave. If you come to the police station on your own and offer information, then you are not in custody, and the things you say can be used against you if you are determined to be involved in a crime. If you are taken to the police station and are being interviewed, you should ask if you are allowed to leave. If you are allowed to leave, you are not in custody. You would be wise to leave, in most cases, rather than to say anything that might turn out to be incriminating.

Whether You Are Being Interviewed or Interrogated

An interview and an interrogation are two different things. One implies being in custody and the other does not. If you are being interviewed, then you are not in custody, and you should avoid making any potentially incriminating statements. If you are being interrogated, then you can argue that you were actually in custody. How do you tell the difference?

An interview is not conducted with the intention of getting a confession. An interview should be calm, intended to get information, but to get an incriminating statement out of you. You should not be intimidated, and there should be no discussion of evidence that could be used against you in a criminal case. There should be no coercion tactics or deals offered to help you face lesser consequences for an alleged felony or misdemeanor in exchange for information.

An interrogation, on the other hand, may include any or all of these elements. The tone is usually more accusatory, and the officers may indicate that they don’t believe what you’re saying.  An interrogation is also generally held for a much longer period of time than an interview. This is attributable to the goal of wearing you down to get a confession.

Ultimately, these key differences between an interrogation and an interview could be the very thing you need to establish that you were actually in custody when certain statements were made, and to have those statements thrown out.

Did You Say Something Incriminating While Not In Custody?

If you can’t establish that you were in custody at the time that you made an incriminating statement, then you likely can’t get the statement thrown out of the evidence. Your best bet is to contact an attorney before speaking with the police, to find out for sure if you are in custody before speaking with the police, and to generally avoid saying things that you’re going to regret saying, whether or not you are in custody. If you aren’t sure if you were in custody, or if you believe that you were, but were not read your rights, then you may have some room to argue against any statements that you made being used against you. Contact the determined South Carolina criminal defense attorneys at Jeffcoat Criminal Defense Lawyers to learn about your options and how we can help.

Michael Jeffcoat-Jeffcoat Firm founder and attorney



Michael R. Jeffcoat is a criminal defense attorney in South Carolina with over 2 decades of experience, our aggressive criminal defense legal team can help you with misdemeanor and felony offenses. Mr. Jeffcoat strives to keep all his clients informed at all stages of their case.

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