Taking Advantage of Your Right to Remain Silent

It’s something that we’ve all seen on television at least once. Cops in a crime drama slap their handcuffs on a person and read them their rights. They tell the person that they have the right to remain silent, and that anything they say can be used against them in a court of law. This is actually one of the few things that have a basis in truth.

The notorious case of Miranda v. Arizona protects a person’s right to not say anything to police. This correlates with the Fifth Amendment privilege that says people cannot be forced to incriminate themselves. People must be read their rights before being questioned by the police. One of these rights is that to remain silent. A person may also stop any questioning at any point, even if they have agreed to provide answers.

The Timing of Your Rights

Many people believe that they have to be read their rights as soon as they are arrested. This is not the case. A person must be read their rights when they are in custody and going to be interrogated by law enforcement. Miranda rights have nothing to do with being arrested. They solely apply to being questioned.

When a person is not read their rights, anything they say to the police cannot be used against them. This is true of people who are in custody. However, if a police officer asks questions before you are in custody, you do not have to be read your rights. Experienced law enforcement officers will tell a suspect that they are not under arrest and then ask questions.

When Silence Can Be Used Against You

If you are questioned out of custody and choose to remain silent, your silence could be used as evidence of your guilt. This is thanks to a Supreme Court decision handed down in 2013. It said in part, that the prosecution in a case could comment on a person’s silence when:

• they were out of police custody and not given their Miranda rights
• they voluntarily submitted to questioning, and
• they stayed silent without expressing their Fifth Amendment rights.

Even if you are not under arrest, the court says that you must use words such as “I invoke my right against self-incrimination” in order to not have your silence used against you.

What to Say

You want to invoke your rights and aren’t sure what to say. There are several phrases that you can use, but the best is, “I wish to exercise my Fifth Amendment right against self-incrimination.” If you do not use words to this affect and choose to stay silent, you could be wishing that you had spoken up later.

After stating your wish to remain silent, the only other thing you should say is, “I wish to speak with my attorney.” If you have been arrested in Orlando or the surrounding area, reach out to our team of experienced criminal defense attorneys. We are here for you and ready to defend you. Call now to schedule your appointment for a free case evaluation. We are here for you as you fight for your rights in court.