Know Your Rights 101 – Right to Remain Silent

Know Your Rights 101 – Right to Remain Silent

Written by Jon, our fellow attorney and legal expert.

If you’ve watched a police TV show or movie in the last 40 years, you’ve heard, “You have the right to remain silent, anything you say can and will be used against you in a court of law…” as the police slap the cuffs on a suspect.

This (or a similar variation) is followed by a number of other rights, such as the right to an attorney, and how one will be provided to you if you can’t afford one, etc. Where does this come from, and what protection does it actually provide you and me in a practical sense?

Before we even get started, here is the best piece of advice I can give you:


If you do this each and every time, you can stop reading. In my experience as a criminal defense attorney, however, this almost never happens. So, on to your right to remain silent.

The right to remain silent originates in the Fifth Amendment of the United States Constitution, which says, No person…shall be compelled in any criminal case to be a witness against himself…

For many years the interpretation of how this applied to U.S. citizens was confusing and a little murky, until the seminal United States Supreme Court case from 1966, Miranda v. Arizona.

This is where the Miranda Warning that we know and love comes from, but the most important thing to remember is that regardless of any other issues, there is one caveat that you must remember – You have to be under arrest and being “interrogated” for the Miranda protections to apply!!

What does this practically mean?

First, you must be under arrest for Miranda to kick in. This seems like a simple concept, but the courts have actually made this more complicated as time has gone on. More on this another time.

Second, any statements must be made during interrogation. The most important consideration here is that it must be a government actor (like the police, FBI, etc.) asking you questions that are meant to elicit an incriminating response, not a security guard or other layperson.

Again, seems simple, right?

Well, there are hundreds of court cases that have attempted to talk about what interrogation is and isn’t.

How do we apply this to our regular interactions with law enforcement?

It means that if the police are just asking you questions on the side of the road or during a stop or on the side of the street as you are walking by, Miranda protection doesn’t apply because you aren’t under arrest.

It means that if you are talking to someone other than the police, including store security or just a dude you met, Miranda protection doesn’t apply.

It means that if your conversation is recorded by someone other than the police, Miranda does not apply to what you say (this obviously depends on whether or not you live in a jurisdiction where you can be recorded without your consent, of which there are many).

It means that if the police simply overhear you saying something, or you offer the information to police when they are not interrogating you, Miranda does not apply.

It means that if you voluntary talk to the police, what you say can and will be used against you in a court of law!

We could go on, because there are literally libraries of books written on this topic, as well as cases that come up all the time for the courts to interpret.

Instead, a few specific things to keep in mind.

  1. If you ask for a lawyer, the police are supposed to stop questioning. There are some exceptions, like if you reinitiate the conversation before your attorney gets there (or if the police try to talk to you about a different matter), but the best thing to do if you are arrested is ask for an attorney and stay quiet.
  1. In order for your right to remain silent to apply, you have to tell the police that you want to remain silent. This is tricky (and most people think quite insane, but you can take that up with Justice Scalia and the rest of the yahoos who decided Berghuis v. Thompkins by a 5-4 margin in 2010) but the Supreme Court has ruled that you must tell the police you are invoking your right to remain silent. Simply remaining silent is not enough, so if you are quiet for some time and then start talking you may be out of luck. Again, tricky.
  1. It’s possible that your silence will be used against you in court. Again, this seems insane, but in 2013 the Supreme Court decided Salinas v. Texas (again by a 5-4 margin) which held that under certain circumstances a prosecutor can tell the jury that you decided to stay silent instead of cooperating with the police. Many legal commentators found this ruling to be completely nuts, and antithetical to everything that Miranda stands for, but here we are. Once again complicated, tricky, and worth more careful commentary than this post, but regardless.
  1. If the police don’t read you the Miranda warning, it does not invalidate your arrest or mean that your case is thrown out. I can’t tell you how many clients I’ve had that assume they are off the hook because the police forgot to read them the Miranda warning, but it’s not the case. The only thing that might mean is that any statements you’ve made will be kept out during a jury trial (per the exclusionary rule), and that isn’t even guaranteed depending on the numerous exceptions the Supreme Court keeps carving out of Miranda.
  1. You can also invoke the right to remain silent at trial. This is usually during your own trial, but it could also mean testifying in someone else’s trial if what you are going to say may incriminate you. Once again, more complicated and subject to numerous exceptions, but helpful nonetheless.

The reality is the case law surrounding the right to remain silent is very complicated, but hopefully we have covered some of the basics.

Know that judges are not going to give you the benefit of the doubt, and will believe police 99.9% of the time, so your best bet is:


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