Insights Into How Our Legal System Works

FAQs About Invoking The Right To Remain Silent

24 August 2016 by Yolanda Lane

Even if you have not been involved with the criminal justice system, chances are you are familiar with Miranda warnings. A key component of Miranda warnings is that you have the right to remain silent. Unfortunately, there is some gray area regarding your silence that could hurt your defense. If you are facing criminal charges, here is what you need to know about invoking your right to silence. 

Do You Have the Right to Remain Silent?

Although Miranda warnings state "You have the right to remain silent," there are potential consequences to doing so that could hurt your case. The right to remain silent applies when you are being interrogated by police. However, your silence before and after could be used by the prosecution to strengthen the case against you. 

In 2014, the California Supreme Court agreed that prosecutors in a case had the right to use a man's silence against him. Richard Tom failed to ask about the welfare of the victims of a car accident in which he was involved and the prosecutor cited his silence as indifference. Even though he was acquitted by the jury, the court opened the door for silence to be used as an argument against alleged perpetrators. 

A fine point of the Miranda warning that is often misunderstood by alleged perpetrators is that remaining silent requires stating that you want to invoke your Fifth Amendment right. If you mistakenly believe that simply staying silent is enough, you could be giving the prosecutor ammunition against you.

The right to remain silent also does not offer protection if you voluntarily submit to questioning from law enforcement. 

What Can You Do?

One of the most important things you can do to protect yourself is to state that you want to invoke your Fifth Amendment rights. It has to be stated once you are considered in custody. If you are unsure whether or not you are in custody, ask the police officer if you are free to go. If he or she will not let you leave, invoke your right and ask to speak with a criminal defense attorney.

You also should never consent to being questioned. Once you do, your statements could be used by a prosecutor. It is important to note that the line regarding when questions posed by police are considered part of an interrogation and when they are not can be blurry. The laws regarding interrogation can vary by state, so check your state's laws to determine when questioning becomes interrogation. You can also consult with a criminal defense lawyer like Mesenbourg & Sarratori Law Offices to learn more about your state's laws.

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