Your Lips Are Sealed: Invoking the Right to Remain Silent

You’ve no doubt heard the words “you have the right to remain silent” on any crime drama or murder mystery TV show that you’ve watched recently. This warning, known as part of the Miranda warnings that individuals are entitled to receive under the Fifth Amendment, is ubiquitous in pop culture. But how does it actually work, and when must it be invoked? Every individual should know these rules.

What Are My Miranda Rights?

Under the Fifth Amendment, individuals stopped by police are entitled to protection from self-incrimination. This means that before being asked questions by the police, potential criminal defendants must be informed of their rights to be safe from incriminating themselves. These rights include:

  • The right to remain silent
  • The right to have a lawyer with them during questioning
  • The right to consult with a lawyer prior to questioning
  • The right to have a lawyer free of cost if they cannot afford a private attorney

In The Jailhouse

It is a common misconception to believe that Miranda rights only apply after you’ve been arrested. This is incorrect. Miranda rights apply any time a person is in custody. You are considered “in custody” if you do not reasonably believe that you can leave a given situation.

So “in custody” may occur while standing on a street corner surrounded by police cars, while sitting in the back of a police car yourself, or while in an interrogation room at a local police station. In any of these situations, if you feel that you cannot reasonably stand up and walk away, then a police officer should read you your Miranda rights before beginning to question you.

What to Say and When to Say It

The Supreme Court of The United States has made clear that simply saying nothing is not enough to protect your rights while in custody, or to prevent evidence of your silence being used against you at trial. Instead, you must affirmatively tell police that you want to invoke your right to remain silent.

If you fail to make this type of a statement, police can continue to question you, with the eventual hope that perhaps you will breakdown and speak. In order to best protect yourself while in police custody, you should make immediately clear that you understand your Miranda rights and do not intend to respond to police questioning.

This does not mean that you need to engage in a lengthy speech or have your Miranda rights completely memorized. But it does mean that you will need to do more than stay silent. Instead, affirmatively let police or others know that you are simply not going to answer their questions, and would like to see a lawyer. They may attempt to continue to question you, hoping that you will “forget” that you requested your lawyer—so hold your ground by politely yet firmly repeating your request for a lawyer, and staying silent until you get one.

Criminal Defense Attorney Jonathan D. Schmidt Advocates for the Rights of Defendants in Custody

There are many points in the course of a criminal investigation where an individual may feel overwhelmed by the pressure of police and investigators, resulting in missteps along the way. The best defense against such errors is knowledge of one’s rights. Criminal defense attorney Jonathan D. Schmidt can help advise you on how to protect yourself in the event of a police investigation. To find out more about how he can help, contact us online or at (319) 423-3031.