The “right to remain silent” is a Constitutional privilege that protects people from being compelled to give testimony that could incriminate them.
The right to remain silent helps a person avoid making self-incriminating statements that can later be used against them. When a person is placed under arrest by a police officer, they are read their “Miranda Rights.”
Under the U.S. Supreme Court case, Miranda v. Arizona, whenever a person is taken into custody and questioned, they must be informed of their Fifth Amendment right against self-incriminating statements. Police must read the suspect “Miranda Rights,” which include:
Any person who wishes to invoke his right to remain silent should clarify that they invoke their Constitutional privilege against self-incrimination. Saying something along the lines of, “I invoke my right to remain silent, and I want to see my lawyer” before you are given your Miranda rights should suffice.
Notwithstanding, the American Civil Liberties Union (ACLU) advises people that if police ask you to identify yourself in some states, you must at least give your name.
No. Because silence is ambiguous, an affirmative, unambiguous statement is required that clearly demonstrates you are using your right.
You want to be clear that you are invoking your right to remain silent. Mentioning any of the following can indicate that you are invoking your Constitutional privilege.
There are no specific words that trigger your right; however, the standard is that an invocation is sufficient so long as a “reasonable police officer, in the circumstances, would understand the statement to be a request for an attorney.”
A person can invoke the right to remain silent during police interviews, interrogations, and trials.
Police and attorneys must stop all questioning as soon as you invoke your right to silence. Your right to silence is not specific to the person who happens to be interrogating you. Police cannot simply send in a new police officer to question you. Your right to silence remains regardless of who questions you so long as you invoke your right.
If police continue to question, they have violated your Miranda rights, and subsequent statements made as a result of the unlawful questioning cannot be used against you in a court of law.
Law enforcement officers must inform suspects of their Miranda rights to remain silent and have an attorney present. As long as a suspect understands these rights when they are explained, statements made in the following interrogations may be admissible as evidence. If you are being questioned as a suspect, clearly invoke your right to remain silent or the right to speak to an attorney.
If the police read a suspect their Miranda rights and the suspect understands, police may continue or later interrogate the suspect. The Fifth Amendment does not prevent statements made after a period of silence from being used as evidence. You must communicate your desire to invoke the right to remain silent.
When a suspect fails to invoke the right to remain silent properly, it must be established that the suspect waived their right for statements made during interrogation to be admissible as evidence against the suspect. The waiver does not need to be explicit. Suspects can waive their right to remain silent if they make voluntary statements after understanding their Miranda rights.
Silence and body language are ambiguous. The clearest way to invoke your right to remain silent is to tell an interrogator that you invoke your Miranda right to remain silent.
Be careful with statements indicating a likely intent or a future intent to invoke your right to silence. The statement, “maybe I should speak with a lawyer,” is ambiguous and doesn’t constitute an invocation of your right to silence. The statement, “I plan on invoking my right to silence,” could be considered an invocation but could also be interpreted to mean you will invoke the right in the future and not at the present moment.
Skilled police interrogators understand how to create ambiguity out of your words. Your best bet is to leave no wiggle room when invoking your rights. You don’t need to wait for your Miranda rights to be read to you before you invoke them. You can invoke your rights as soon as you’re arrested, even before your rights are read to you. You may continue invoking your rights, especially if you have reason to believe that your invocation was not understood.
If your case goes to trial, a jury is given specific instructions against construing the invocation of your Fifth Amendment right against self-incrimination as an admission of guilt.
Nevertheless, it is not uncommon for jury members to assume a person is guilty of a crime because he decided to invoke his right to remain silent, even though the jury member is specifically told not to consider that during deliberations.
According to the Supreme Court, the prosecution can comment on the silence of a suspect who:
The only way to prevent the government from introducing evidence of your silence at trial is to assert your right to say nothing explicitly. Without being warned by the police or advised by a lawyer, you must say words to the effect of “I invoke my privilege against self-incrimination.”
Even if you’re in custody, speak up. A suspect who is in custody, who has received the Miranda warning, and who says nothing in response hasn’t invoked the right to silence. A suspect’s silence doesn’t invoke the right to silence. If you remain silent for a period of time without invoking your Fifth Amendment rights and provide a statement, that statement is likely admissible.
Do not remain quiet over the course of questioning. Say that you want to remain silent or insist that you want a lawyer. If you say something incriminating, the court can hold that your statement is admissible.
If the police have questioned you, speak with a criminal lawyer immediately to learn more about your rights and the complicated legal system. A criminal defense attorney can help you identify what to say and what not to say.
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