Miranda Warnings and Recorded Evidence at a Retrial

Attorney Answer

Not exactly. Missing Miranda warnings do not make audio inadmissible across the board. The rule reaches only your own statements made while you were in custody and being interrogated — and even then there are exceptions.

A recording is not excluded because you were never warned. What matters is whether the recording captures a statement of yours, whether you were in custody at the time, and whether police conduct amounted to interrogation. Audio of other people talking, audio of events, statements you volunteered without being questioned, and statements made before you were in custody are generally not touched by the Miranda rule at all.

And the exceptions can be broad. In State v. Widmer, 2020-NMSC-007, 461 P.3d 881, the New Mexico Supreme Court held that the public-safety exception applied and that a defendant's un-warned statement was admissible. An officer had asked a handcuffed suspect, before any Miranda warnings, whether there was anything on his person the officer should know about, and the suspect admitted to having methamphetamine. The Court held the question fell within the exception given the need to determine whether the suspect was armed or carrying harmful drug paraphernalia, and it reversed the Court of Appeals, which had held the statement should be suppressed. That decision runs against the assumption you are working from, and in a drug possession case the fact pattern is close to home.

One piece of good news on the retrial itself: a hung jury is not an acquittal, and the State is permitted to try you again. That is normal, not a rights violation.

What you can do

1. Ask your attorney for a copy of the recording and the transcript, and identify precisely which words on it are yours. 2. Do not write out your own account of what happened. Notes you create yourself are not protected by attorney-client privilege, can be seized or subpoenaed, and can be used to impeach you if your testimony later differs. Instead preserve the records that already exist — texts, call logs, emails, receipts, photos and location history — along with the names and contact details of any witnesses, and give your account to your attorney verbally. Those facts, not the absence of a warning, are what decide the issue. 3. Ask whether a motion to suppress was filed before the first trial, and if so what the court ruled. If it was litigated and denied, ask what would have to be different to raise it again. 4. If it was never raised, ask your attorney in writing whether it should be litigated before the retrial, and get the reason if the answer is no. 5. Write out, separately, the specific things you believe went wrong at the first trial, with dates and names. "My rights were violated" is not something a court can act on; a specific ruling or a specific event is. 6. Order the transcript of the first trial if you can. Where a witness's testimony changes at the retrial, that transcript is the tool that exposes it.