Invoking Your Right To Silence After An Arrest While Being Questioned

Most people are familiar with the concept of being "read your rights," as it is a common trope found in most television shows that center around crime and the police. Reading rights came about after the supreme court case Miranda v. Arizona, which set forth the precedent. The basic concept is that anyone placed under arrest has to understand that anything they say at that time can be used against them in court, that they have the explicit right to consult with a lawyer (who can be present during questioning), that if they do not have the funds to pay for their own lawyer, they will be provided one free of charge, and lastly if they do agree to questioning, they can end that questioning at any time.

When Must I Be Advised Of My Rights?

Police must Mirandize (read the Miranda Rights to) anyone who has been placed in custody prior to interrogating them. If the police have a reasonable understanding that there is likelihood that their questioning may prompt you to give an incriminating reply, they are required to read you your rights. If you are being questioned but are not in custody-- for instance if a police officer has explicitly told you that you are free to go and that you have not been placed under arrest, that police officer does not have to read you your rights.

What If I Wasn't Advised of My Rights?

Typically what happens in the event that you have been placed in custody and are being interrogated, but have not been Mirandized, is that anything you say cannot be used against you in court. Many people are under the incorrect assumption that you must be read your rights when you are placed under arrest, and that otherwise your case is instantly dismissed. This is completely incorrect, as Miranda Rights only apply to you if you are in custody and being interrogated.

How Else Must I Invoke My Right To Be Silent?

Also contrary to common opinion, you must be explicit about your actions if you wish to invoke your right to remain silent. It is not enough to simply be quiet or to not answer any questions during an interrogation. You must say something to the effect of "I will not answer questions because I am invoking my right to remain silent." In previous cases (Salinas v. Texas), an individual who answered some questions and remained silent when asked other more serious and pointed questions, was taken to trial because of that silence. They did not explicitly invoke their rights, and instead simply avoided hard questions, making themselves appear suspicious to police. Later, in court, their lawyer tried to put forth that they had invoked their right to remain silent but this was not successful, and has thusly set a well-known legal precedent.

How A Criminal Lawyer Can Help

You have the right to a lawyer's council at any point of your questioning. Most lawyers will advise you not to answer any questions without the presence of a lawyer. Having a lawyer not only gives you peace of mind that you will be treated properly, but protects you against being confused by any questioning or what your role is in the process. You are free to consult with your lawyer during questioning.

It is important to understand your rights before you are in a position to exercise them, otherwise you are likely to foul up or incriminate yourself somehow, making your situation worse. Remember that your criminal defense attorney can certainly be present during questioning, and that if you choose to remain silent you must explicitly announce this fact to the police.