Researched by Thomas DeMichelePublished - May 17, 2016 Last Updated - January 7, 2019
Do I Actually Have the Right to Remain Silent?
You have the right to remain silent and not make any self-incriminating statements in police custody, as granted by the Fifth Amendment and confirmed by Miranda v. Arizona.
From the moment you enter police custody until you are “free to go”, including when in the court of law, you have the right to assert and exercise your right to remain silent when being questioned (and thus to avoid making any self-incriminating statements).
You are innocent until proven guilty, don’t incriminate yourself and don’t forget to invoke your rights.
How to Exercise Your Right to Remain Silent and Right to a Lawyer
To exercise the right to remain silent (and the right to a lawyer), you must:
Be in police custody. Whether you are “under arrest” or “being detained”, if you aren’t “free to go”, then you are “in custody”. This is true even if you haven’t be read your Miranda rights.
Assert your Fifth and Sixth Amendment rights. You must assert your right remain silent and the right to legal counsel after being placed in custody (even if you don’t have, or cannot afford, an attorney).
After you’ve been read your rights, or before answering questions in custody, say, “I don’t want to talk to you; I want to talk to an attorney.” You don’t have to answer questions without a lawyer present.[1]
A few more important points:
To be very clear, it isn’t enough to just be silent; you must invoke your rights.
Anything you say or don’t say before being placed in custody can be used against you as per Salinas v. Texas (2013).
The right to remain silent applies to any other form of communication from body language to written words. Specifically, you shouldn’t sign a written confession (like Miranda did).
There is no specific phrase that needs to be said; you just have to make it clear that you are asserting your right to remain silent. We cover details like this below.
QUESTION: There is a very important side question here, “when is it appropriate to answer a law enforcement officer’s questions, and when should you remain silent”. That is covered a bit on this page: Invoking Your Right to Remain Silent. I’m not sure the best answer for every situation, but the general answer is to remain respectful and follow our general advice on this page. Comments welcome.
Quick Advice on Your Rights During a Police Encounter – When to Remain Silent
The example below is what to do when pulled over; the general advice is the same in any common situation.
Upon being stopped, be courteous and non-confrontational. Say, “sir,” or “ma’am,” and “I don’t know.” Roll down the window enough to communicate and pass papers through, keep your hands at 10 and 2, and don’t reach in the glove box (as this hides your hands).
You have the right to deny search requests and keep items you don’t want the officer to see out of view (a search warrant isn’t needed for items in plain sight). If asked if your property can be searched say, “Officer, I do not consent to any searches of my private property” (your Fourth Amendment Right).
Determine if you are free to leave by asking “am I free to go?” If the answer is no, then you are being detained or arrested, and you are in police custody. Now you can use your right to remain silent (granted to you by the Fifth Amendment of the Bill of Rights) and request legal counsel (your Sixth Amendment Right).
Upon being detained or arrested, you’ll likely be read a version of the Miranda warning (the statement about your right to remain silent and right to a lawyer). Right after you have been read the warning say, “I claim my Miranda rights, I want to talk to an attorney” (or some variation of this). You have now asserted or “invoked” your Fifth and Sixth Amendment Rights and don’t need to respond to further interrogation.
If you don’t assert your rights, the police can continue to question you. If the police don’t plan to question you, they may not read you your rights, but you can still invoke them if you are being held in custody.
TIP: If you are in custody, and you are being interrogated, then you can invoke your right to remain silent. This is true even if your rights weren’t read to you. If you haven’t been told that you are being detained or arrested, ask, “am I free to go?” or “am I being detained or arrested?” As noted above, anything you do or don’t say before being in custody can be used against you.
TIP: Saying “sorry” or apologizing is an admission of guilt. It can be used against you.
When Should You Assert Your 5th Amendment “Miranda” Rights?
Right after you are read your rights you should assert your right to remain silent. You don’t need to use a specific phrase. Nolo.com suggests phrases such as:[2]
“I don’t want to talk to you; I want to talk to an attorney.”
“I refuse to speak with you.”
“I invoke my privilege against self-incrimination.”
“I claim my Miranda rights.”
TIP: If you start talking, feel free to stop mid sentence and assert your rights. “You have the right to stop the interview at any time.”
FACT: A prosecutor cannot use the silence of a person during an in-custody interview as evidence of guilt at trial. (But see Miranda and Post-Arrest Silence.) If you aren’t under arrest yet and are in a “pre-custody” interview, then silence can be used against you. (see Invoking Your Right to Remain Silent.)
The Difference Between Being Arrested, Being Detained and Being in Custody
Being arrested and being detained are different, but both count as “being in custody” and in both cases you should assert your 5th Amendment right to remain silent and speak with an attorney before saying anything to the police. They won’t always read you your rights if they don’t plan on interrogating you, but you should still assert and then exercise your rights. See What is the difference between detention and arrest?
Do the Police Have to Read me my Rights?
The police don’t have to read you your rights (the Miranda Warning). However, if they don’t read your rights, they can’t use anything you say as direct evidence against you at trial.
That is to say; any statement made after arrest, but before being read your rights is is presumed to be involuntary, and cannot be used against you in a criminal case. Any evidence discovered as a result of that statement would also likely be thrown out.
This doesn’t apply to what you say before you are placed in custody.
Example of How Miranda Rights Affect Permissibility of Evidence
If you rob a bank, then see a cop, and tell them you robbed a bank, that can be used against you. If the cop arrests you first, but you aren’t read your rights before interrogation, and then you tell them you robbed a bank, and then you tell them where you stashed the money, all evidence, and your confession will likely be thrown out in the court.
TIP: After being read your rights the police can continue talking to you (less likely if you assert your rights immediately after). If you respond, that can be used as evidence in Court (even saying “no”, or “I am innocent” can be used against you). Thus, you should do nothing other than asserting your 5th or 6th Amendment rights upon arrest.
MYTH: It is a myth that a case will be thrown out if your Miranda rights aren’t read. The only thing that happens if they don’t read you your rights is that they can’t use anything you say against you. If you are holding a smoking gun, then that is on you. If the smoking gun is behind a tree, and they didn’t read you your rights, it creates one heck of a loophole. See the “fruit of the poisonous tree” rule.
Where Does the Right to Remain Silent Originate?
The right to remain silent comes from the 5th Amendment, but specifically from the 1966 U.S. Supreme Court case Miranda v. Arizona in which a man named Miranda incriminated himself after being taken from his home, interrogated for two hours, and then signed a written confession. This led to him being found guilty of kidnapping and rape and was sentenced to 20-30 years incarceration on each count.
The court ruled that the 5th amendment of the U.S. Constitution (Bill of Rights) ensures criminal suspects in police custody the right to remain silent to avoid self-incrimination (unlike Miranda).
Everyone also has the Sixth Amendment right to counsel.
In simple terms, there is very little you have to say once under arrest, and unlike Miranda, you should not sign confessions either.
TIP: See interesting facts on Miranda v. Arizona. Miranda rights and Miranda warning are both just references to the statement that must be read per Miranda v. Arizona which make clear a person’s rights upon arrest.
An Example of the Miranda Rights Statement that Must be Read Prior to Interrogation in Custody
A Miranda warning typically sounds something like this:
“You have the right to remain silent and refuse to answer questions. Anything you say may be used against you in a court of law. You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future.”
If you do say anything, what you say can be used against you in a court of law.
You have the right to consult with a lawyer and have that lawyer present during any questioning.
If you cannot afford a lawyer, one will be appointed for you if you so desire.
If you choose to talk to the police officer, you have the right to stop the interview at any time.
Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
The Miranda rule applies to the use of testimonial evidence in criminal proceedings that is the product of custodial police interrogation. For Miranda to apply, six requirements must be fulfilled (according to Wikipedia, compiled by citing past court cases):[3]
Evidence must have been gathered.
The evidence must be testimonial.
The evidence must have been obtained while the suspect was in custody.
The evidence must have been the product of interrogation.
The interrogation must have been conducted by state-agents.
The evidence must be offered by the state during a criminal prosecution.
The Ruling – Supreme Court Holding on Miranda v. Arizona
The prosecution may not use statements, whether exculpatory or inculpatory, stemming from questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way unless it demonstrates the use of procedural safeguards effective to secure the Fifth Amendment’s privilege against self-incrimination. [4]
Whether “statements obtained from an individual who is subjected to custodial police interrogation” are admissible against him in a criminal trial and whether “procedures which assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself” are necessary.
Holding
The Court held that “there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves.” As such, “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”
The Court further held that “without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would otherwise do so freely.” Therefore, a defendant “must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.”
The Supreme Court reversed the judgment of the Supreme Court of Arizona in Miranda, reversed the judgment of the New York Court of Appeals in Vignera, reversed the judgment of the Court of Appeals for the Ninth Circuit in Westover, and affirmed the judgment of the Supreme Court of California in Stewart.
Argued: Feb. 28, March 1 and 2, 1966
Decided: June 13, 1966
Vote: 5-4
Majority opinion written by Chief Justice Warren and joined by Justices Black, Douglas, Brennan, and Fortas.
Dissenting opinion written by Justice Harlan and joined by Justices Stewart and White.
Dissenting in part opinion written by Justice Clark.
You have the right to remain silent in police custody, which you should use as anything you say can be used against you in a criminal case.
The only reason to speak is to assert your 5th amendment right to remain silent and your 6th amendment rights to request counsel. You should assert your rights immediately after being read your rights to avoid confusion and further questioning.
Prior to your arrest what you say, and what you don’t say, can be used against you, thus you should ask, “am I being detained, am I under arrest?”
TIP: Denying something or apologizing can be worse than saying nothing. Assert your rights, remain silent, and talk to an attorney, not the police. The police are Civil Servants, not your buddies, this is especially true when under arrest.
Author: Thomas DeMichele
Thomas DeMichele is the content creator behind ObamaCareFacts.com, FactMyth.com, CryptocurrencyFacts.com, and other DogMediaSolutions.com and Massive Dog properties. He also contributes to MakerDAO and other cryptocurrency-based projects. Tom's focus in all...
