THE RIGHT TO REMAIN SILENT

right to remain silentIn our experience, the police can usually be counted on to act fairly and professionally when interacting with members of the public. But it is still important for all of us to know and understand our rights when interacting with the police. So today I want to revisit one of the most important constitutional rights — the right to remain silent.

In the United States, the right to remain silent is based on the part of the Fifth Amendment which says that no person “shall be compelled in any criminal case to be a witness against himself.” This is also known as the right against self-incrimination. Most people are familiar with the words used by law enforcement to communicate this right:

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you?

These sentences together are known as a Miranda Warning, and are the result of the decision by the United States Supreme Court in the case of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966). When a person is in custody, Miranda requires law enforcement officials to specifically advise the suspect of both the right to remain silent and the right to have an attorney. When you are outside the context of detention or arrest, you have no duty to answer any police questions at all. If you are unsure if you are being arrested or detained, it is appropriate to politely ask the police if you are free to leave.

It is important to remember that you have to specifically invoke your right to remain silent. You do this by saying: “I invoke my right to remain silent” or “I am not going to answer any questions without talking to my lawyer first.” In the event that you are actually arrested or detained, we always recommend that you decline to answer any questions and immediately ask for a lawyer.

In asserting your right to remain silent, you should not offer any explanation or make any excuses for doing so. Once you invoke your right to remain silent, you must also be careful not to subsequently waive your rights by starting a conversation with the police.

Finally, it critical that whatever you do say to the police is true. You should not lie. You should not present false documents such as a fake driver’s license. Any lie you tell or fraud you attempt to perpetrate on the police will only make your situation worse and could lead to additional criminal charges being made against you.