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Right to Remain Silent

Katherine Blakley July 28, 2015

“You have the right to remain silent. Anything you say can and will be used against you in a court of law…”

We’ve all heard those words, the beginning of the famous Miranda warning, usually spoken by an actor portraying a police officer. She says them with grim authority as she snaps handcuffs over the wrists of a criminal suspect. But what do they mean in the real world when you’ve just been arrested? If an officer doesn’t inform you of your rights, does that affect your case?

A criminal defendant’s right to remain silent comes from the privilege against self-incrimination, which in turn comes from the Fifth Amendment of the United States Constitution. The Fifth Amendment guarantees that “no person… shall be compelled in any criminal case to be a witness against himself.” These words give the impression that the privilege against self-incrimination only applies to defendants during criminal trials, and although it is indeed an important trial right, the United States Supreme Court has said that the privilege applies at other stages of criminal investigations and prosecutions.

In fact, the reason that a police officer is required to give a Miranda warning is that certain constitutional rights apply the moment a defendant is arrested. Two rights protected by the Fifth Amendment—the privilege against self-incrimination and the right to an attorney—are so essential that police officers must inform defendants of these rights. In Miranda v. Arizona, the U.S. Supreme Court decided that before a police officer can question an arrested defendant, the defendant “must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney.” This is because an arrested individual, “swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion,” is virtually under compulsion to speak and thus possibly incriminate himself—the very thing that the Fifth Amendment is designed to prevent.

Once the police officer has informed the arrested defendant of his rights, the officer is permitted to question the defendant. However, the fact that the police are allowed to ask questions does not mean that the defendant is required to answer them. The right to remain silent means the right to remain silent in the face of police questioning. The prevalence of police interrogation scenes on television shows like Law and Order has resulted in viewers believing that they must answer all questions police officers ask them. This is not true.

Another misconception is that police officers must always give Miranda warnings after an arrest. This is not true either, and a failure to give a Miranda warning does not taint an otherwise valid arrest. A police officer is required to give a Miranda warning only when a defendant is in custody (for example, under arrest) and the officer asks him questions about his alleged criminal activity. If an officer fails to read to inform you of your rights, but he doesn’t ask any questions and you don’t say anything, there is no harm done.

After the Miranda warning, a savvy defendant will invoke his right to silence. The invocation must be verbal, clear, and unequivocal; silence alone is not sufficient. After a defendant has invoked his right to silence, the officer may not ask further questions unless the defendant initiates contact or until the defendant has spoken with an attorney.

Clearly, the authority of police officers to interrogate arrested defendants is much less than movies and television shows would have us believe. Our criminal justice system places a high value on procedural fairness and accuracy of results. These twin goals are better served when defendants are not coerced into giving false confessions or making other incriminating statements by highly skilled interrogators who have the resources and the authority of the government at their disposal.

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