If you are in the position where you feel you may be arrested or questioned by the police, please take a moment at this critical time to read the following information concerning one of your most important rights as a United States citizen:
The Right to Remain Silent
Everyone knows about the right to remain silent when being questioned by the police, but oddly, people time and time again do not exercise this constitutional right.
The Fifth Amendment to the United States Constitution conveys a privilege against “self-incrimination”.
This privilege is the basis for what is commonly known as the “right to remain silent”. When you are being questioned by law enforcement, it is being done as part of an investigation. If you are a suspect, or are going to become one, everything that you say to law enforcement can be used against you later. By giving statements to the police, you are providing incriminating evidence, and thus waiving your privilege against self-incrimination.
Many people believe that if law enforcement does not read a Miranda advisement to them, then statements they make cannot be used in court. Miranda v. Arizona, 384 U.S. 436 (U.S. 1966), is the U.S. Supreme Court case that established the parameters for what rights criminal defendants must be advised of by law enforcement prior to custodial interrogation. The crucial part of the analysis is “custodial interrogation”. Often times, a person is not in custody in the eyes of the law when he or she is questioned by law enforcement. If a person is not in custody, law enforcement does not have to advise the person of their rights prior to questioning. While there can still be an argument made that the statements given were not voluntarily made, this standard is extremely difficult to prove in order to keep non-custodial statements out of a trial.
What about a suspect waiving the privilege against self-incrimination after having been advised of the right?
Why do people do this? Often times, a suspect believes that speaking with law enforcement will “clear things up” and that the matter will be dropped. While this could happen, it rarely does.
If a suspect is already in custody, it is highly doubtful that anything that is said is going to help his situation; in the majority of cases, any statements made hurt the defendant and help the prosecution. People routinely make statements to the police that can be interpreted in many different ways, but will be presented to a jury in the most damaging light. A suspect might respond sarcastically to a statement made by a police officer by saying “Yeah, right”, but what gets written in a police report or a probable cause affidavit is that the suspect acknowledged guilt. And while a defendant could explain that to a jury, if the questioning isn’t recorded (which many are not), it is the defendant’s word against the police officer’s. Not a situation a criminal defendant wants to be in at a jury trial.
When faced with a situation where you are a potential suspect in a criminal case, exercise your right to remain silent
The fact that you kept quiet cannot be used in a trial against you. In fact, it can’t even be mentioned by the prosecution. So when in doubt, keep quiet! The founding fathers thought that the right to remain silent was so important that they included in the U.S. Constitution. So exercise it!