At the Howard, Lewis & Petersen, we have been providing aggressive criminal defense in UT for over 50 years. One of the tools we have as defense attorneys is the Fifth Amendment of the U.S. Constitution against self-incrimination, also known as the “Miranda Rights.” In this article we will explain when and how to invoke your right to silence.
As depicted on many television shows and movies, a suspect is read his or her Miranda Rights starting with the phrase, “You have the right to remain silent…” Officers must inform arrestees that”
- What they say can be used against them in court
- They have the right to consult with a lawyer
- A lawyer can be present during questioning
- A lawyer will be appointed to represent them free of charge if they cannot afford but want one
- If they decide to answer police questions, they can stop the interview at any time.
Officer must recite the Fifth Amendment Rights and be sure they are understood whenever they interrogates someone who is in custody. But there are two keywords that must be explained. The first, “Interrogation,” includes not only direct, verbally expressed questions and answers, but also any words or actions that police officers use to elicit an incriminating response. The second key phrase is “in custody.” Being “in custody” is a situation in which a reasonable person, being held as a suspect, would not feel free to leave.
The main reason for the Miranda Rights is so that the prosecution cannot use in court the suspect’s silence as incriminating evidence of guilt. But the law does not require the recitation of the Miranda Rights if the suspect is not in custody. As a result, officers will routinely question suspects after carefully and specifically letting them know that they are not under arrest and are free to leave. Thanks to a U.S. Supreme Court case (Salinas v. Texas, 133 s. Ct. 2174 (2013)) on June 17, 2013 the only way to prevent the prosecution from introducing evidence of the suspect’s silence is to explicitly invoke the right to say nothing. Meaning that, in order to invoke the right to silence, the interviewee must say words to the effect of, “I’m not saying anything because I invoke my right to silence.”
Posted June 18th, 2014