The Right to Remain Silent

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What Is the Right to Remain Silent?

The Fifth Amendment in the Bill of Rights states that “no person shall be compelled in any criminal case to be a witness against himself.” Thus, the Constitution does not literally grant a right to remain silent. The Fifth Amendment does, however, prohibit American law enforcement from coercing or forcing people into speaking. The famous U.S. Supreme Court case, Miranda v. Arizona, turned the Fifth Amendment prohibition of self-incrimination into the right to remain silent as we understand it today.

Refusal to answer police questions is one of the most important rights a person has when he or she is detained or arrested. The prosecuting attorney will be looking for any angle possible to incriminate the defendant. One of the best sources of information is the very defendant the prosecutor will be trying to imprison.   

How Do I Use My Right to Remain Silent?

If a police officer is speaking with you, ask if you are free to leave. If the police officer says “no,” consider yourself detained. At that point you should tell the officer: “I will remain silent. I want to see a lawyer.” After that, do not say a word, even if provoked by the officer. The officer may attempt to trick you into speaking. If that happens, just repeat ““I will remain silent. I want to see a lawyer.”

It is recommended that you inform the officer of your desire to remain silent as early as possible, but once you are arrested, it becomes crucial that you exercise your right. Once you are under arrest, the police will pay much more attention to what you say in the hopes of incriminating you.

Regardless of when you trigger the right, be sure that your statement is clear and affirmative, so that the police cannot (purposefully) misinterpret it.

What Is the Extent of the Right?

The right can be exercised at any time, including a conversation on the streets with an officer, anywhere in the police station, and even in the courtroom at trial. You may invoke the right if the police stopped you on the road or if the police visit your home. The right applies to state police officers, FBI and any other government “authority.”

Shouldn’t the Police Inform Me of My Rights?

The police are only obligated to give the Miranda Warning when someone is arrested and the police plan to question a suspect. If there is no arrest or no interrogation, the police do not have to give a Miranda Warning. However, the police can still use your words against you if the prosecutor decides to charge you with a crime later on.

Can I Use the Right to Remain Silent If I am an Immigrant?

Yes. Since the Fifth Amendment refers to “persons” rather than “citizens,” immigrants and other non-citizens may use the right to remain silent. The person’s immigration status does not matter.

Do I Need a Lawyer?

If you have been questioned by the police you should speak with a criminal defense lawyer immediately to learn more about your rights and the complicated legal system. An attorney can help identify exactly which statements you should give to the police and which you should avoid.

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Last Modified: 01-30-2013 11:32 AM PST

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