Invoking the Right to Remain Silent

Crime dramas often shoehorn Miranda rights into scenes. If you have ever seen a police officer in a TV show tell a suspect, “You have the right to remain silent," you have heard of Miranda rights. However, a suspect does not invoke the protection simply by staying silent. Instead, the suspect must affirmatively invoke their right.

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

A suspect must unequivocally invoke the right to remain silent to gain its protection. Simply staying silent does not mean police must stop their interrogation.

This article summarizes what it means to invoke your constitutional right to remain silent.

Miranda v. Arizona

The Fifth Amendment to the United States Constitution provides the 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 Fifth 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. The interrogation occurs when a suspect is in police custody, and officers start asking the suspect questions.

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 come back to bite them. 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 the right to remain silent or the right to an attorney.

Thus, if police read a suspect their Miranda rights, and 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. However, this waiver does not need to 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?

Because 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." However, there are other ways to invoke clearly. 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 (Davis v. United States). The statement, "I plan to invoke my right to silence," could be considered an invocation. However, it could also be interpreted 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. Therefore, criminal suspects should clearly invoke their Fifth Amendment right to remain silent. Additionally, suspects do not need to wait for police to read them their Miranda rights before they invoke the right to silence. If the suspect believes police did not hear or understand their invocation, the suspect may repeatedly state that they are invoking their rights.

Failing to invoke the right to remain silent can have serious consequences. In 2013, the U.S. Supreme Court concluded that a witness's silence to a question can be used against them in a criminal case (Salinas v. Texas). There, the suspect voluntarily answered some of law enforcement's questions. The suspect had not unequivocally invoked his right to remain silent. Law enforcement then asked him another question about an alleged murder, to which the suspect remained silent. His silence was used 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.

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. Any subsequent statements you make during the unlawful interrogation may not be used against you in a court of law. However, your voluntary statements may constitute a waiver of your rights. Voluntary statements may be used in your court case, even if you previously invoked your right to silence.

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

Learn More About Your Right to Remain Silent by Speaking to an Attorney

Invoking the right to remain silent is a central right of criminal suspects in the criminal justice system. The right allows suspects to secure legal counsel and minimizes 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:

  • General information regarding criminal law and criminal investigations
  • Rights guaranteed by the U.S. Constitution
  • Your Fifth Amendment privilege
  • An analysis of your criminal charges
  • Criminal trial defense and litigation strategy
  • The right to remain silent after a DUI charge

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.

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