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In the United States, police must read your rights regarding police questioning as shown below1:

“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 an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you?”

In the United Kingdom, there is something similar read out to arrestees like so (taken from an analog question in English stack exchange):

You do not have to say anything, but it may harm your defence if you do not mention when questioned something you later rely on in court. Anything you do say may be given in evidence.

There are many things floating around on the internet but I wanted to know from here:

If applied in the United States, what are the main functional differences between the British mirandizing phrase and the US one?

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    The rest of the world calls it the Right to Silence. The United States is the only place that has the Miranda warning; capital m and always capital m, because it "was enshrined in U.S. law following the 1966 Miranda v. Arizona Supreme Court decision".
    – Mazura
    Dec 15, 2021 at 2:50
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    None of the answers have yet mentioned that the "but it may harm your defence" clause is a relatively recent addition
    – AakashM
    Dec 15, 2021 at 8:53
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    It should be noted that there are three separate legal systems in the UK: England and Wales, Scotland, and Northern Ireland. The right to silence and the warning is not exactly the same in all three. Dec 16, 2021 at 16:36

3 Answers 3

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So the most obvious is that the U.S. Miranda Rights specifically mention right to legal counsel and right to state provided legal counsel (Public Defenders) if you cannot afford legal counsel (Contrary to some opinions, these guys are very good at their job... it's just that they are also very over worked and private industry pays better). While the right exists in the U.K., the U.K. version of the required reading of rights only speaks to right against self-incrimination, which, if you want a difference is a good place to look.

In the self-incrimination clauses, the U.K. and U.S. versions are very different. The U.K. right is a qualified right where as the U.S. is an absolute or unqualified right. This is a distinction which sounds silly upfront but is very serious in how things will transpire.

Suppose that you are arrested for the murder of your spouse. You definitely did not do and the "one armed man" definitely did. Either way, you remain silent during interrogation. At trial, your defense is "It wasn't me it was the one armed man" and you intend to present evidence of this. In the U.S. this would be permitted, no further questions asked (or at the least, defeated by other means unrelated to you giving the cops the cold shoulder). In the U.K., this would be first be challenged by the prosecution with "Why didn't you say this when you were arrested?" and your silence on this matter will be used against you.

In fact, asking that challenge in the U.S. is very inappropriate, as was recently seen in the Kyle Rittenhouse trial, where the Prosecution did ask that up front to Rittenhouse, prompting a scolding from the judge out of view from the jury.

The reason for this is that in the UK there are more strict rules placed on cops during interrogation than there are in the U.S. (In the former, cops cannot lie to you about the facts of the case and they cannot interrupt your statements to them once you start to respond. This is par for the course in the U.S. for cops. In fact, in the U.S., shouting "It was the one armed man" on arrest can do more damage than just shutting up until you're before a judge and jury since that lets the prosecution use the implausibility of a one armed man against you (in both nations, statements that are against your interest do not violate hearsay rules, thus, the cops will only use such a statement against you... it's your job to prove it true or at least plausible enough to make a jury doubt the cops are right.).

Also note that this is England and Wales jurisdictions only. Scotland, having its own legal system, retains the right against self-incrimination as an absolute right.

Also a big obvious one but the read rights would not be called the "Miranda Rights" by the police or legal community (it may be, by the crooks they are arresting who have no clue that the TV version might be the U.S. one since it's more likely to get shown there than on U.K. TV.). In the U.K. they would be called "Standard Cautions" or "Reading the rights". The U.S. name derives from the SCOTUS case Miranda v. Arizona which was the ground-breaking case that made this required by all police when interrogating a suspect. Additionally, each state has their own version, which generally reads the same way (they explain your 5th and 6th Amendment rights to silence and an attorney) and may vary on asking if you choose to waive the rights upon receiving an affirmative answer that the rights were understood ("With these rights in mind, do you wish to speak to me?" is the proper phrasing). They also are read from cards (business card to index card sized) where the right is printed in English and Spanish and the suspect must sign it as part of acknowledging that their rights were read.

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    @jkej - so what is a possible response in that case (police asking questions before arrest) that would preserve your right to silence. In traffic stop cases various youtube videos (well known) advise asking "am I under arrest? am I free to go?" and then doing it ... is that applicable here?
    – davidbak
    Dec 15, 2021 at 20:41
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    @davidbak "I wish to invoke my Fifth Amendment rights." (Or anything along those lines. You don't have to use any specific wording, you just have to say something indicating that you want your Fifth Amendment rights.) Dec 15, 2021 at 21:34
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    @davidbak You have your Fifth Amendment rights regardless of whether you've been arrested. The difference between being arrested and not is that courts will interpret answering a question while not being arrested as being voluntary, and thus a waiver of the right. The finding in Miranda is that an arrest creates such a coercive situation that answering a question cannot be considered a voluntary waiver of the right unless you've been explicitly informed of the right. Dec 16, 2021 at 6:22
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    @davidbak The Supreme Court explicitly said that there was no "ritualistic formula" necessary to invoke you rights. Explicitly mentioning the Fifth Amendment as user3067860 wrote is probably the best. Something like "I'd like to exercise my right to remain silent." is probably also good. Anything expressing that you choose to not answer by principle is probably better than nothing.
    – jkej
    Dec 16, 2021 at 10:05
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    @davidbak - "I'd like my attorney present before I answer any questions"
    – Steve V.
    Dec 17, 2021 at 19:00
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& (things are different in Scotland)

The caution is given on arrest, when questioning a suspect (who may or not may not be under arrest), and when charged for an offence.

One significant difference from the Miranda Warning is the phrase:

it may harm your defence if you do not mention, when questioned, something you later rely on in court.

This is intended to prevent, or at least reduce, an "ambush defence" where the defendant comes up with a previously untold and exculpatory defence at trial - the judge can make a direction to the jury along the lines of "if the defendant's account is true, then why didn't he say so when arrested, interviewed or charged?  Is there a valid reason why or did he make it up?"

The relevant extracts from section 34 of the Criminal Justice and Public Order Act 1994 are:

(1) Where, in any proceedings against a person for an offence, evidence is given that the accused—

  • (a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or

  • (b) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact,

; or

  • (c) at any time after being charged with the offence, on being questioned under section 22 of the Counter-Terrorism Act 2008 (post-charge questioning), failed to mention any such fact,

being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subsection (2) below applies.

(2) Where this subsection applies—

...

  • (d) the court or jury, in determining whether the accused is guilty of the offence charged,

may draw such inferences from the failure as appear proper.

Another difference is that in England & Wales suspects are informed of their right to free and independent legal advice (FILA, along with their other rights) when their detention is authorised by an independent Custody Officer at a police station - although it may be mentioned at the point of arrest, there is no legal obligation to do so - as a suspect must (unless certain exemptions apply discussed here) be offered and able to consult in private with their FILA before being questioned "under caution".

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It should be noted that the US "Miranda Warning" does not need to be in the exact words quoted in the question, although it often is in those words or something quite similar. The requirement in the court decision is that the police inform a person that s/he has the right not to answer questions or make statements, has the right to consult a lawyer, has the right to a free lawyer if unable to afford one, and that any statements can be used against the person at trial. A suspect has various other rights which the "Miranda warning" does not cover (for example the right not to be physically abused during questioning).

In England and Wales (E&W), failure to offer an explanation can be commented on and used to discredit an explanation offered later, in the US, this is forbidden, and doing so may even cause a conviction to be overturned. Thus the E&W warning mentions this.

The US version normally includes a question as to whether the person warned understood the warning. The E&W version, I believe, does not. This is because if at trial in the US there is evidence to show that the warning was not understood, it is not effective and statements made under interrogation may be excluded from evidence.

Note that the US warning is only required for custodial interrogation that is, asking questions of a person while that person is under arrest or otherwise detained and not free to go. That is because the US Supreme Court held that custodial interrogation is an inherently coercive situation, even if the police use no improper force, threats, or other improper methods, and that admissions or statements while in custody are not freely given unless the person making them knows and is reminded of his or her rights. If the police do not intend to question an arrested person they may omit the warning, but as a matter of procedure most US police departments give it to everyone arrested or detained or indeed questioned when not in custody, so that any statements the person makes would be admissible.

It is now common in the US to record giving the warning on audio or video, but the courts do not require this. I am not sure if this is now a common practice in E&W.

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  • It's too bad US courts haven't recognized that there is no legitimate way for a cop to try to make a suspect believe he has no choice but to confess. Instead, courts get too hung up on questions of cops' precise actions (e.g. how many hours did they hold the suspect). If a cop's actions are demonstrably intended to be coercive, such intention in and of itself makes the actions illegitimate.
    – supercat
    Dec 15, 2021 at 23:22
  • @Supercat US courts have taken the view thatm if a person knows his or hre tights, then confessions or admissions are not coerced unless some specific rule is violated. That wouldn't be the position I would take, but it seems to be the law in the US at this time. Dec 16, 2021 at 17:24
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    @supercat as far back as Fletcher v Peck decisions of federal courts have been held to bind state courts. It is long established that Supreme Court rulings do not merely bind the parties to a case, but bind all US courts to follow on constitutional and federal issues. That is the US system works. However states can and sometimes do extend rights beyond what the federal constitution requires. For example, a number of states imposed an exclusionary rule before Mapp v Ohio was decided. What constitutes "being a witness against oneself" is for a court, specifically SCOTUS, to decide. Dec 16, 2021 at 17:51
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    @supercat It is not currently unlawful in the US for a cop to "make suspects believe they have no choice but to confess". Perhaps it should be, but it is not. I believe that the US Supreme Court has fairly specifically said so, but I don't have a citation at hand. Perhaps there should be a separate question here about the supremacy clause. Dec 16, 2021 at 17:57
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    @Supercat This is getting well off topic for this question. Please see law.stackexchange.com/questions/76382/… and perhaps start a new question as well. Dec 16, 2021 at 18:27

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