Understanding the Right to Remain Silence (And How to Invoke It)


Understanding the Right to Remain Silence (And How to Invoke It)

If you’ve ever seen an episode of CSI or Law and Order, chances are you’ve watched the police officers drag a suspect to the car while diligently reading off their Miranda rights. If you’re like most people, you probably believe that this is a typical situation. However, you’d be wrong. The right to remain silent is a lot more complicated than most people think, and if you don’t know your rights, you could wind up in a heap of trouble.

Background Information on Miranda Rights

The well-known case of Miranda vs. Arizona (384 U.S. 436, 1966) created the statute for what we now call Miranda rights. The case arose when the plaintiff, Ernesto Miranda, was not made aware of his rights and made self-incriminating statements because of that lack of knowledge. The case dictated that suspects under arrest must be read their rights. The court’s decision also delineated the specific facts that police officers are required by law to make the arrestee aware of. These facts include:

  • Anything you say can be used against you if the case goes to trial.
  • You have the right to consult with a lawyer before you answer any questions.
  • You have the right to have your lawyer with you when the police question you.
  • If you don’t have a lawyer, you have the right to ask for one and the court will provide you with one, even if you can’t afford your own.
  • If you decide to answer any questions, you can stop the interview at any point in time.

What Police are Required to Tell You if You’re in Custody

It seems straightforward enough. If you’re talking to the police, you have the right to remain silent, right? Not so fast. Miranda rights only go into effect if you’re technically “in custody.” That means, if you’re not in custody, the police aren’t required to tell you anything. According to the law, they don’t have to advise you of any of your rights, and if you don’t know your rights, it’s not their responsibility to explain them to you.  The trick is knowing whether or not you’re in custody.

Are You in Custody or Not?

It should be easy to tell whether or not you’re in custody. However, as with most things in the legal system, it’s not that simple. Technically, you’re only in custody if you’re being arrested. If officers decide to arrest you, then they have to read you the Miranda rights. If they just “want to talk,” even if they’re talking to you in an interrogation room at the police station, you’re not technically in custody if you haven’t been told you’re under arrest. That means the police can get information out of you, knowing they can use it later, without ever telling you that you don’t have to answer them.

How Police Officers Encourage You to Talk

Sometimes, police officers know that if they arrest a suspect, that person is less likely to talk. So, what they do instead is ask the person to answer a few questions. It’s a conversation that starts with “We just want to ask you a few questions.” In fact, most police officers will go out of their way to inform you that you are not under arrest and that you can leave anytime you want. That way, they don’t have to read you your rights, and if you don’t already know them, you’re extremely vulnerable. The obvious question is why people don’t just leave. However, most people who are in a police interrogation room don’t feel they can get up and walk way, even if they were told that they can. Moreover, the police are usually motivated to get information from you, so they’ll try to persuade you to stay even if you say you want to go. Surprisingly enough, there’s nothing illegal about that course of action.

Being Silent is Not Invoking Your Rights

Let’s say you’re asked to speak with the police, you’re told you can leave, and nobody reads you your Miranda rights. You should know that you still have the right to remain silent. However, silence in and of itself is not invoking your rights. In fact, unless you use specific words or phrases that expressly tell the cops you don’t want to speak to them, they can use your silence against you as evidence of guilt.

It wasn’t always this way. Up until recently, the rule had always stated police officers and attorneys were barred from using silence against you if you didn’t talk to them. However, in 2013, a case out of Texas made its way to the US Supreme Court [Salinas v. Texas, 133 S. Ct. 2174 (2013)], and that case changed everything.

In Salinas, the plaintiff had agreed to answer questions regarding a shooting. When the police asked him whether or not ballistics testing would prove that his gun was involved, he hesitated and never answered the question. When the case went to trial, prosecutors used that silence as evidence of guilt, and the Supreme Court upheld the action, saying it was constitutional and legal.

What to Say if You Wish To Remain Silent

Given this information, you can see how crucial it is to know your rights. However, knowing your rights isn’t enough. You need to know how to invoke them, as well. If you want to remain silent and you don’t want to speak to the police officers, you have to say something along the lines of the following:

  • I wish to invoke my Fifth Amendment rights and do not wish to answer questions.
  • I want to invoke my right to be silent under the Fifth Amendment.
  • I want to invoke my privilege against self-incrimination granted to me by the Fifth Amendment.

It’s important to understand how to invoke your rights. There are many rights in the criminal justice system that are only seen as “active” if you speak up and say that you want to invoke a certain right. If the police ask you to answer questions, even if they tell you that you’re not under arrest, understand that you’re free to say no, to leave at any time, or to have an attorney present with you. If you’re concerned about your rights or you feel that you might be a suspect in a crime, call a qualified criminal defense attorney in your area. Only a criminal defense lawyer can help you protect yourself and obtain the fairest treatment possible during the course of the case.


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