Your Right to Remain Silent and What You Need to KnowYour right to remain silent is an important constitutional protection that you have under the Fifth Amendment which ensures that no one is required to be a witness against himself. This right is so important that the police must inform you of it when giving you your Miranda warnings. While you may understand your right to remain silent in general, it is important to understand when you can invoke it and how to do so—which can be more complicated than you may think.

When Must the Police Advise You of Your Right to Remain Silent?

The police are only required to inform you of your Miranda rights if they are interrogating you while you are in custody or they are arresting you. Interrogation includes more than outright questioning. It also includes words and actions that the police know are likely to result in obtaining a criminal statement. You would be considered to be in custody when a reasonable person in your shoes would not believe that he is free to leave. When the police are required to read you the Miranda warnings, they must inform you of these rights:

  • You have the right to remain silent.
  • Any statements that you make can and will be used against you in court.
  • You have the right to an attorney and if you cannot afford one, one will be appointed for you.

When Can You Invoke Your Right to Remain Silent?

Even if you are not in a situation where the police must inform you of your Miranda rights, you have the right to remain silent. This includes at an initial traffic stop. In this situation, you must provide the officer with your driver’s license, registration, and proof of insurance. However, once you give him this basic information, you are not required to answer his questions, and you should politely decline to do so.

How Do You Invoke Your Right to Remain Silent?

It is critical that you understand how to properly invoke your right to remain silent. Unfortunately, under a U.S. Supreme Court case, you cannot simply remain silent to assert your right. You must affirmatively state your intention to do so. Otherwise, you may be considered to have waived your right, and your subsequent statements may be used against you. Ways that you can clearly inform the police that you will remain silent include:

  • “I am asserting my Miranda rights.”
  • “I am asserting my right to remain silent.”
  • “I do not want to talk to you until I consult with my attorney.”
  • “I am refusing to answer your questions and want an attorney.”
  • “I am invoking my constitutional right against self-incrimination.”

When invoking your right, it is important to give clear statements. You want to avoid statements that may not be sufficient, such as “I think I need an attorney.”

What Happens When You Exercise Your Right to Remain Silent?

Once you have stated that you are asserting your right to remain silent, the police should not continue questioning you. They cannot just switch interrogators and require you to state your intentions again. It would be a violation of your Miranda rights for the police to continue to ask you questions, and any statements that you made after this point could not be used against you.

Can Your Silence Be Used Against You in Court?

If you properly state that you are exercising your right to remain silent, your silence cannot be used against you if you are arrested and your case goes to trial. The jury would be given a specific instruction not to construe your silence as an admission of guilt.

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C. Todd Browning
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Charlotte Criminal Defense and DWI Lawyer