Speak Up: Invoking Your Right to Remain Silent

If you’ve ever watched any crime-related television show or movie, then you’ve heard a police officer recite Miranda warnings as they arrest someone. Of these rights being recited, the very first one, “You have the right to remain silent. Anything you say can and will be used against you in a court of law …” causes quite a bit of confusion.

An officer must provide Miranda warnings whenever they interrogate someone who is in custody, and the definitions of those two words are vital. An interrogation includes direct questioning and any words or actions that an officer knows will likely provoke an incriminating answer. A person is in “custody” if they are in a situation in which a reasonable person in their situation would not feel free to leave. Yet many officers know this, and will often inform potential defendants that they are not in custody, but continue to seek incriminating information without having to “Mirandize” the individual.

Originally, the effect of Miranda warnings was that the prosecution could not use a person’s silence as evidence of guilt. Yet the US Supreme Court has now held that prosecutors can use a suspect’s silence in response to police questioning as evidence of guilt, even if the suspect is not in “custody.” The only way to stop the prosecution from introducing evidence of a person’s silence is to explicitly invoke the right. In other words, without being warned by an officer or advised by a lawyer, a person must outwardly state that they wish to remain silent.

Those who are in custody must still invoke the right to remain silent. The U.S. Supreme Court has ruled that a suspect who is in custody, who has received the Miranda warning and says nothing in response, has not invoked the right to silence. If a person simply remains silent and does not indicate that they intend to claim the right to do so, then anything said once the silence has been broken may be used as evidence.

Is it reasonable to place the obligation of asserting constitutional rights on everyday people? This is a question the courts have answered with a resounding “yes.” Having a fundamental knowledge of your constitutional rights is imperative when facing a potential arrest as it can make a difference in what evidence may be presented against you.

If you have questions regarding whether you properly invoked your right to remain silent or if you feel your constitutional rights may have been violated, contact the experienced criminal defense attorneys at the Law Offices of Douglas T. Sachse.

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