Invoking the Right To Remain Silent

To invoke your right to remain silent, you must clearly and unequivocally state your intention to do so. Simply remaining silent is not enough to stop police interrogation. Explicitly stating your desire to remain silent protects your Fifth Amendment rights during police questioning.

Miranda rights (also known as Miranda warnings) inform a criminal suspect of two fundamental rights:

• The right to remain silent
• The right to have an attorney present during interrogation

This article summarizes what it means to invoke your constitutional right to remain silent. What you say and how you respond to questions can greatly impact your defense strategy in court. Consider speaking with a local criminal law attorney to help you avoid statements that could be used against you.

Miranda v. Arizona

The Fifth Amendment to the United States Constitution provides protection against self-incrimination. In the 1966 U.S. Supreme Court case Miranda v. Arizona, the Court established law enforcement‘s duty regarding the privilege against self-incrimination. It requires officers to inform a criminal suspect of their Miranda rights. These protect your 5th Amendment right against making self-incriminating statements.

Miranda warnings inform a suspect that they have the right to remain silent and the right to counsel. Law enforcement must read the rights to a criminal suspect before custodial interrogation begins. Interrogation occurs when a suspect is in police custody, and officers begin asking questions.

When Miranda Rights Apply

Miranda protections don’t apply to every police interaction; they only apply during what’s called a “custodial interrogation.” This means two things must happen at the same time. First, you are in custody, and second, you are being interrogated.

What Counts as “In Custody”

You’re not required to be formally arrested to be in custody for Miranda purposes. You’re considered in custody when your freedom has been restricted to the degree that it feels like an arrest. The key element is whether a reasonable person in your situation would feel free to leave. You don’t have to be handcuffed or officially arrested for this to apply. Courts also look at several factors to determine whether you were in custody, including:

• The language and tone officers used during questioning
• Where the interaction happened and what the surroundings were like
• How long the questioning lasted
• Whether officers confronted you with evidence of your guilt
• The degree of pressure applied, such as threatening language, physical restraints, or weapons

For example, if an officer pulls you over during a traffic stop and asks a few questions while you stand by your car, chances are that you’re not in custody. However, if officers took you inside their patrol car, drove to the station, placed you in a room, and questioned you while suggesting they have evidence against you, a court would likely find you were in custody.

What Counts as Interrogation

Interrogation isn’t just direct questions. It includes any words or actions by police that they should reasonably know are likely to get an incriminating response from you.

In a landmark case decided by the Supreme Court, the officers used the suspect’s religious background to elicit an incriminating response. In this case, the officer never directly asked the suspect where the body of the victim was. Instead, he spoke with another officer in the suspect’s presence. The detective said he wanted to give the victim’s parents the chance to give their daughter a proper Christian burial before an approaching snowstorm made it impossible to find her body. The officers believed it would prompt a response, and they were correct. The suspect eventually led the police to the body.

The Court found this was an interrogation even though the officers did not ask direct questions. They knew the suspect was religious and deliberately made comments to elicit a response. What matters is whether the law enforcement officers should have known that their words or actions were more likely to prompt the person to say something incriminating.

Invoking the Right To Remain Silent and Police Protocol

Law enforcement officers must inform suspects of their Miranda rights. If a suspect understands these rights, any statements they make may later harm their defense strategy. In criminal law, any suspect’s statement made in a subsequent interrogation may be used in their court case. The statements are admissible as evidence against the suspect if they did not clearly invoke their right to remain silent or to an attorney.

When police read a suspect their Miranda rights and confirm that the suspect understands their rights, police may continue or later attempt to interrogate the suspect. The Fifth Amendment will not prevent statements made after a period of silence from being used as evidence unless the suspect clearly communicated a desire to invoke the right to remain silent.

Even when a suspect fails to invoke the right to remain silent properly, it must be established that the suspect waived the right in order for statements made during interrogation to be admissible as evidence against the suspect. This waiver need not be explicit. Suspects can waive their right to remain silent if they make voluntary statements after being informed of and understanding their Miranda rights.

How Can You Clearly Invoke Your Right To Remain Silent?

A 2010 Supreme Court case called Berghuis v. Thompkins (2010) changed how Miranda protections work, making it even more important to speak up clearly. In this case, the police arrested Van Chester Thompkins for murder and read him his Miranda rights. He stayed completely silent during almost three hours of interrogation, but never clearly invoked his rights. Thompkins didn’t state that he wanted to remain silent, didn’t want to talk to the police, or wanted a lawyer.

The Supreme Court has ruled that silence and body language are ambiguous. The most direct way to invoke your right to remain silent is to tell an interrogator, “I invoke my Miranda right to remain silent.”

There are other ways to be clear. For example, you might state:

• That you are exercising your right to remain silent
• That you choose to remain silent
• That you only want to speak with your attorney
• That you want to talk with your attorney first

While no specific words are required to invoke the right, the Supreme Court has held that an invocation is sufficient so long as “a reasonable police officer, in the circumstances, would understand the statement to be a request for an attorney.”

It is essential to clearly and unequivocally invoke the right to remain silent. Statements indicating a likely or future intent to invoke your right to silence may not suffice.

For example, the Supreme Court ruled in 1994 that the statement, “Maybe I should talk to a lawyer,” is ambiguous and does not constitute an invocation. Courts could consider the statement “I plan to invoke my right to silence” as an invocation, but they could also interpret it to mean that you will invoke the right in the future but not in the present.

Skilled interrogators understand how to parse your words and create ambiguity, so criminal suspects should clearly invoke their Fifth Amendment right to remain silent. Suspects do not need to wait for police to read them their Miranda rights before doing so. If the suspect believes the police did not hear or understand their invocation, they may repeat their invocation of rights.

Failing to invoke the right to remain silent can have serious consequences. In 2013, in the case of Salinas v. Texas, the U.S. Supreme Court concluded that a witness’s silence to a question can be used against them in a criminal case.

In this case, the suspect voluntarily answered some of law enforcement’s questions and did not unequivocally invoke his right to remain silent. Law enforcement then asked him another question about an alleged murder, to which the suspect remained silent. They used the suspect’s silence as evidence of guilt in his court case. The Supreme Court held that using the silence did not violate the suspect’s Fifth Amendment rights because he had not invoked his right to remain silent.

Invoking Silence vs. Requesting an Attorney

Both the right to remain silent and the right to a lawyer are Miranda protections. However, each of these rights works in a different way. Understanding this distinction could be the most important decision you make during police questioning.

If You Ask for a Lawyer

When you request an attorney, the police must immediately stop all questioning. They cannot resume until your lawyer is present. Officers cannot return later to question you again unless you initiate contact with them. This protection stays in place.

If You Only Invoke Your Right to Silence

When you invoke your right to remain silent, the police must stop questioning immediately. However, it does not prohibit them from continuing later.

In Michigan v. Mosley, a suspect told police he didn’t want to talk about robbery charges. Officers stopped his questioning. About two hours later, a different detective approached him about an unrelated murder, gave him new Miranda warnings, and started questioning him again. The suspect made incriminating statements, which the courts ruled that the prosecution could use against him.

The Supreme Court views requesting an attorney as a stronger signal that you need help and can’t handle police pressure alone. Simply saying you want to remain silent doesn’t convey the same message in a court of law.

Common Scenarios and What to Say

During interrogation, officers often use psychological tactics, and suspects often make critical mistakes without realizing it. Here are the most common scenarios:

“Just Help Us Clear This Up”

Officers may suggest that talking will resolve a misunderstanding or let you “tell your side.” They might imply that silence makes you look guilty.

Your response should be, “I want to speak with an attorney before I answer questions.” You don’t have to explain why or apologize for not answering. Additional explanation can be twisted to suggest you’re not truly invoking your rights.

Vague Statements Don’t Protect You

Saying things like “I think I might need a lawyer” or “Should I have an attorney?” won’t invoke your rights. Police can keep questioning you.

Be direct. Clearly state “I am invoking my right to an attorney” or “I am invoking my right to remain silent.” Avoid using “maybe,” “probably,” or “I think.”

“We Already Have Evidence Against You”

Officers may claim they have conclusive evidence or that others have implicated you. These claims may or may not be true. Don’t argue with them. Your response should be “I want my attorney present before I answer any questions.” Your lawyer can evaluate what evidence actually exists.

You Can Stop Mid-Interrogation

Maybe you initially waived your rights and started talking, but later became uncomfortable. You can invoke your rights at any point. If you state, “I’m now invoking my right to remain silent and want to speak with an attorney,” questioning must stop immediately. However, anything you already said can be used against you.

What Happens When You Invoke Your Right to Silence?

As soon as you invoke your right to remain silent, all police questioning must stop. If the police continue questioning you after you have clearly invoked your right to remain silent, they have violated your Miranda rights. Prosecutors may not use any subsequent statements you make during the unlawful interrogation against you.

Your right to remain silent is not specific to the person questioning you. Law enforcement cannot simply switch interrogators and resume questioning you.

What happens after you invoke your rights depends on which right you invoked. Here are some common situations:

If You Asked for a Lawyer

Police can’t start questioning you again while you’re in custody. This applies whether they want to ask about the same crime, different crimes, or whether different officers try to question you. This protection remains in effect until either your legal counsel arrives or you contact the police yourself.

If you’re released from custody and then re-arrested 14 or more days later, the initial invocation of your right does not carry over. Officers can give you fresh Miranda warnings and try to get you to waive your rights again.

If You Only Invoked Your Right to Silence

This option offers less legal protection. Police can return later if they wait for a significant period, such as a few hours. They can give you fresh Miranda warnings and use a different officer in a different location. Police can also question you about entirely different crimes even if you invoked silence about another matter.

Can You Change Your Mind?

You can change your mind, but do so with caution. If you invoked your right to an attorney, you can later decide to talk without one present. However, this decision must be voluntary. Officers should not pressure or trick you into changing your mind.

Even if you initially waived your rights and started talking, you can invoke them at any point. Just state clearly: “I’m now invoking my right to remain silent and want an attorney.” Questioning must stop immediately. However, remember that they can still use as evidence anything you’ve already said before invoking your rights.

Learn More About Your Right To Remain Silent: Seek Legal Advice

The right to remain silent is a central right for suspects in the criminal justice system. The right allows suspects to secure legal representation and minimizes the risk of damaging statements made under duress or fear.

Learn more about your right to remain silent by speaking with a skilled criminal defense attorney in your area. A criminal defense lawyer can help you with the following:

• Targeted information regarding criminal law and criminal investigations
• Your Fifth Amendment privilege
• Criminal trial defense and litigation strategy
• The right to remain silent after a criminal charge, including DUI, assault, or drug charges

Not only is criminal law complex, but a conviction also has serious ramifications. If you are facing criminal charges, consider contacting an attorney near you.