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Conway Criminal Law Blog

Do you know the extent of your right to remain silent?

You see it on T.V. all the time. An individual is arrested for a suspected crime, and the police drag them into the interrogation room for questioning. At some point, the accused individual is either informed of his right to remain silent, or he simply asks for a lawyer, both of which can drag the interrogation to a screeching halt.

While you certainly have the right to remain silent in your criminal case, there are a lot of misconceptions about what this right entails. Hopefully this post will help provide some clarity so that you can ensure that you’re doing everything you can to protect yourself if you’re confronted by the police.

The Miranda warning

Following a U.S. Supreme Court case known as Miranda , law enforcement is required to inform an individual of his right to remain silent, including a notice that anything said can be used against the individual in court. The arrested individual should also be informed that he has the right to an attorney.

After this warning is given, the individual can invoke his right to remain silent at any time, even part way through the interrogation. The right to remain silent can only be waived through a clear affirmative response, too.

This means that silence alone is not an indication that you waive your right to remain silent. After all, in some circumstances the accused individual doesn’t understand what’s being said or needs an interpreter. In these instances, an interpreter must be provided to the individual who is being interrogated.

Even if you freely waive your right to remain silent, you can change your mind. The Fifth Amendment to the U.S. Constitution protects you from making statements that are self-incriminating, so the police can’t force you to talk.

Beware the limits of Miranda

Although your Miranda rights can provide you a significant amount of protection, it’s important to note that this warning is required only after an individual has been arrested and brought in for interrogation. A lot of times law enforcement will try to get around Miranda by asking for cooperation from a suspect either prior to arrest or prior to formal interrogation.

The police oftentimes also try to act friendly, like they’re on your side and are simply wanting to talk to you so that they can help. Don’t be fooled by this. In these situations, the police are not your friend.

This leads to the question of constitutes an interrogation. This is an issue that’s often litigated in criminal cases, particularly on appeal. Generally speaking, though, an interrogation occurs when an individual is held by police, meaning that he is not free to go, and is questioned by law enforcement.

Therefore, if the police are talking to you, then it might be wise for you to ask if you’re free to go. If the police say “yes,” then you can leave. If they say “no,” then they should read you the Miranda warning, at which time you can invoke your right to remain silent and ask to speak to an attorney.

Don’t let the police trample your rights

Time and again, law enforcement officers step all over the rights of individuals who they suspect committed a crime. This can lead to criminal charges and the very real threat of serious penalties. Don’t let the police and prosecutors get away with that kind of behavior. Know your rights and act on them.

If you’re rights have been violated, then know how to argue for the exclusion of evidence. Hopefully then you can position yourself to beat the charges you’re facing so that you can move on with your life.