The federal court’s establishment of Miranda rights in the 1960s afforded police detainees protective measures against unfair practices. One of these, the right to remain silent, is one of the most famous and legally divisive.
The Fifth Amendment states in part that no one may be “compelled in any criminal case to be a witness against [themselves]”. Take a closer look at how this right to stay silent protects you.
Invoking the right to remain silent
It is important to know when and how to invoke your right to remain silent. Before the police detain you, they need to establish your identity. Although you may not legally be required to do so, answering basic identity questions can help you appear to be cooperative. However, you do not have to give them details to build a case against you. You should not answer any detailed questions – about anything.
People commonly and incorrectly misunderstand, mostly from watching television, that officers must read you the Miranda rights. This is simply not true. Clients often complain to me that the police never “read me my rights.” Miranda rights are only required for “custodial interrogation” if the prosecution wants to use your statements against you in court. If there is no custody or no interrogation, or if the police/prosecutor do not want to use your statements against you in their case-in-chief, which is not the same thing as when you are cross-examined if you testify at trial, then no Miranda warnings are required.
It is critically important that people affirmatively assert their right to remain silent. Do so clearly, respectfully, and unequivocally. Do not waffle. Simply state, “I am not going to answer any questions. I have nothing to say. I am going to remain silent” Do not use ambiguous language. Make it clear and use affirmative statements.
Silence as protection
Your silence protects you from interrogation techniques. Interrogators receive training and may trick you into making incriminating statements. For example, many people are shocked to learn that the police may lawfully lie to a suspect during interrogation. While it is not impossible to undo what you say to the police, it is better to wait for your attorney for guidance.
Remaining silent in the face of an investigation does not prove anything other than you choose to exercise your legal rights. As long as you invoke your right properly and refrain from making statements, the police will have to build the case against you without your help.