Invoking Your Right to Remain Silent

If you are arrested, the police must “read you your rights”, or give what is known as a Miranda warning. Thanks to years of police shows on television, most of us are familiar with these rights:

  • Right to remain silent
  • Right to talk with an attorney
  • Right to have an attorney present during questioning
  • Right to have an attorney appointed for you if you cannot afford one
  • Right to know that anything you say can be used against you in court
  • Right to stop a police interview at any time

Even though we know these rights, sometimes defendants find it difficult to assert them after being arrested. However, in order to protect yourself, you need to remain silent until you speak with a criminal defense attorney.

Officers have to provide a Miranda warning whenever they take someone into custody, before questioning. Under the law, silence generally cannot be used against you in court and is not an indication of guilt. However, a 2013 U.S. Supreme Court case held that prosecutors can, under certain circumstances, use a suspect’s silence as evidence of guilt when the suspect:

  • Is not in police custody and has not been read their Miranda rights
  • Volunteers to be questioned by police
  • Stays silent without expressly invoking the right to remain silent

What this means is that you must expressly say that you are invoking your right to remain silent, even if you have not been warned by police or talked with an attorney. If you have been given a Miranda warning and are in custody, you also must say you are invoking your right to silence.

By explicitly stating that you are invoking your right to remain silent, you protect yourself against self-incrimination, a right that is guaranteed to you by the Fifth Amendment. Even if police continue to question you after you invoke your rights and ask to speak with an attorney, they cannot use anything you say – or any evidence they may find as a result of what you said – against you in court.

The Cogdell Law Firm is a full-service criminal litigation and appellate law firm. We provide client-focused representation at all stages of the process, whether our clients are seeking to avoid charges, have been charged, or are seeking reversal of a conviction on appeal. When results matter most, contact Dan Cogdell at (713) 426-2244 or