When and How to Invoke Your Right to Remain Silent

Even if you’ve had no prior experience with law enforcement or the criminal justice system, chances are that you’re aware of your right to remain silent. However, most people don’t understand exactly when the right to remain silent applies, when you must be advised of that right, how to invoke that right, and what happens if you’re not properly advised.

That said, if the police want to question you or have attempted to question you, it’s in your best interest to talk to an experienced criminal defense attorney as soon as possible. Even if you invoked your rights and declined to speak with police, it is still a good idea to talk with a local criminal lawyer right away. If police suspect you of a crime or believe that you have evidence that will help them in a criminal investigation, simply walking away without talking to them isn’t likely to bring law enforcement’s inquiry to an end. Choosing not to speak with law enforcement is just a way to preserve your rights until you can get advice from an attorney.

Find Out Whether You’re Free to Go

Many people who are approached and questioned by the police have a general sense that they’re not allowed to leave. Sometimes, police intentionally create that impression without actually stating it. If the police begin questioning you, the first thing you want to know is whether or not you’re free to leave. One good way to find out is to specifically ask the member of law enforcement questioning you “Am I free to go?”. If they say you are free to go, then you are free to leave the meeting without answering any further questions. If however law enforcement officers tell you that you are not free to leave, then you’ve been advised that you are being subjected to a custodial interrogation. A consequence is that every individual is entitled to be read their Miranda Rights before being asked testimonial questions in a custodial interrogation. Now your Miranda Rights advise you that you have the right to remain silent, that you have the right to an attorney, and also inform you that anything you say to law enforcement will be used against you. Put a different way your Miranda Rights tell you not to speak with members of law enforcement and while you’re free to disregard those, you typically do so at your own peril.

People accused of wrongdoing by police think they’re helping themselves by trying to set the record straight, but this can go terribly wrong in many different ways. Statements can be taken out of context, paraphrased in ways that create the wrong impression, or used as a foot in the door to keep you talking.

The best next step in this situation is typically to tell the police that you’d like to talk to an attorney, and that you won’t be answering any questions.

What Questions Can Police Ask You?

If you haven’t explicitly and unequivocally invoked your right to remain silent or your right to an attorney, then members of law enforcement are free to ask you pretty much any question they like. Having said that, there are some questions that even if you invoke your rights the police are allowed to ask you. Such questions involve obtaining basic non-testimonial information like your date of birth, address, phone number, height, and weight. Beyond that though, by invoking your rights you’ll end the interrogation and be spared answering most of the questions law enforcement officers have for you.

Of course, knowing your rights and knowing how to effectively invoke them are two different things.

How to Tell the Police You’re Invoking Your Rights

Clarity is key in telling police that you want to invoke your rights. This is true whether invoking your right to remain silent, your right to an attorney, or both. Ideally, you’ll advise the law enforcement who is seeking to question you of your desire to invoke both your right to remain silent and your right to an attorney. Doing so should end questioning at that point. However, if you re-engage with law enforcement and ask them to talk about the investigation, the case, or what they were trying to ask you about, such action will act as a waiver of your invocation and will allow law enforcement to resume questioning.

Now when we say a person must clearly and unequivocally invoke their rights, the type of language you might use in a conversation in everyday life may not suffice in this situation. For example, it may come naturally to say something like, “I don’t know if I want to talk to you. Maybe I should get a lawyer,” likely won’t be considered sufficient to invoke your right to remain silent.

Instead, you’ll want to make clear, concise statements to the Officer questioning you like:

“I am invoking my right to remain silent.”

“I am invoking my right to consult with an attorney.”

Now it is also very important to understand that simply refusing to make any statement at all and remaining mute is not the same as invoking your right to remain silent. In fact, refusing to respond to questioning that would normally merit a response from someone can be used against you in Court if you haven’t explicitly and unequivocally invoked your right to remain silent beforehand.

That said, if the police get you to talk after you’ve invoked your rights, it is possible that your criminal defense attorney will be able to get your statement and any evidence it leads to suppressed. But, that process isn’t nearly as straightforward or certain as it appears on television. The best option is to stay quiet.

Should I Stay Silent Even if I Didn’t Do Anything Wrong?

Generally, yes. Many innocent people think they can clear things up by explaining, but it doesn’t always work out that way. Information you provide may lead the police to suspect you even if you are innocent, and they may try to confuse you with their questions to get you to make inconsistent statements or otherwise trip you up. In the vast majority of situations, the best response is to say nothing.

What if the Police Don’t Read Me My Rights?

There’s a lot of confusion about Miranda rights. One key point many people aren’t aware of is that the requirement that a suspect be advised of their rights kicks in only during a custodial interrogation. That means police officers who stop you on the street to ask questions, call you on the phone, or even ask you to voluntarily come down to the police station and answer some questions aren’t required to read you your rights.

However, you can still assert those rights.

Another common mistake is believing that if a police officer is required to “read you your rights” and they don’t do so, the charges will be dismissed. If a police officer fails to advise a suspect of their Miranda rights in a custodial interrogation, the statement they collect may be suppressed. That means your criminal defense attorney may be able to keep that statement from being introduced as evidence against you. But, that doesn’t necessarily mean the charges will be dismissed.

Consult an Experienced Criminal Attorney

Criminal defense attorney Matthew Lufrano has devoted his career to helping people in Florida protect their rights and fight criminal charges. To learn more about how Lufrano Law can help you, call 904-513-3905 right now, or fill out the contact form on this website.