Invoking Your Right to Remain Silent

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If you are a fan of films, you may have heard the phrase “you have a right to remain silent” as cops put cuffs on a suspect. 

While the procedure may not be as you see it on film, the police are required to read suspects their rights to silence which in legal circles is referred to as Miranda rights. 

Understanding Miranda Rights

Miranda rights have their origins in the Fifth Amendment, which protects suspects in criminal cases from self-incriminating. When issuing a Miranda warning to a suspect, the police must let the suspect know they have a right not to say anything. 

Also, the arresting officer must inform them that what they say can be used in court if they choose to speak. The arresting officer also must let the suspect know they have a right to legal representation. 

There is no requirement that arresting officers read suspects their Miranda rights at the point of arrest. However, the police must do so before interrogating a suspect in custody. Suppose an arresting officer proceeds to get information from a suspect before reading them their Miranda rights. In that case, that information can be thrown out by the court even when it could be incriminating.

Invoke Your Rights and Ask To Have an Attorney

After having your rights read to you, you can still choose to talk to the police. However, you have a right to stop the interrogation at any point. While you may have the right to stay silent, staying silent for the entire course of your interrogation may not work in your favor. 

“The best approach to invoking your right to silence would be following up by asking to have an attorney present during the interrogation,” says Ryan McPhie of Grand Canyon Law Group. For example, if the investigating officer’s line of questioning feels like it could lead to self-incrimination, it is best to ask for a lawyer. If you express your desire to have a lawyer with you, the investigating officer cannot interrogate you until you have a lawyer. 

“In Custody” And “Out of Custody” Right to Silence

Right to silence works differently for “in custody” and “out of custody” suspects. If you are already under arrest, invoking your right to silence cannot be used against you in court. Even when the police could feel like you have something to hide by invoking your right to silence, they cannot use it in court because the court works with evidence, not speculations.

However, if you are not under police custody, staying silent can be pointed out in court to show that the suspect could have been guilty and thus their hesitation to answer a question. To avoid a scenario where the prosecution could use your silence as proof of guilt, you must expressly assert your right to remain silent by telling the investigating officer that you invoke your fifth amendment rights.

Get a Lawyer

As a layperson, the protocol for invoking your right to silence can be challenging, which could mean making expensive mistakes, especially if the underlying crime carries severe consequences. Whether you are under arrest or the police want to gather information from you, invoking your right to silence and talking to a lawyer are the only sure way of ensuring you do not make your situation worse. If you are in police custody and cannot afford a lawyer, you can ask for a court-assigned public defender who is far better than working alone.


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