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You Have The Right To Remain Silent: Understanding The Fifth Amendment

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“You have the right to remain silent…” is a phrase that is said every time cops put handcuffs on a person. It’s part of your Miranda Rights, and it is your Fifth Amendment right, which offers you to privilege to not self-incriminate if you have been arrested.

Effectively, you’re protected from police questioning or trial. Exercising these rights is important because once you cooperate, you forfeit these rights and must continue cooperating with the police.

When You Have the Right to Remain Silent

“The Fifth Amendment to the U.S. Constitution protects people from being compelled to give testimony that could incriminate them. This is not the same as saying that a person has a right to silence at all times. In some situations, police may use silence itself as incriminating evidence,” states Justia.

Knowing when you have the right to remain silent is important if you’re ever arrested.

Technically, you can remain silent always, but a lot of people assume that their rights can only be invoked after they had their rights read to them. The misconception has led to police speaking to a person that is not under arrest.

Police may not be trying to arrest you at this very moment, and since you’re not in custody, they do not read you your rights. During the conversation, you may say things that will be used against you if you’re arrested in the future.

Police are required to read you your rights in two main circumstances:

  • You’re taken into custody
  • Before interrogation

Recent court decisions have since changed the concept of the law. A 2013 case (Salinas v. Texas, 133 S. Ct. 2174 (2013).) demonstrated that being silent isn’t enough to invoke your rights.

The court found that if a suspect remains silent, the prosecution can comment on the silence if you:

  • Submit to questioning voluntarily
  • Are not in police custody
  • Remain silent without invoking the Fifth Amendment

Even if you remain silent, you must explicitly invoke your Fifth Amendment rights to ensure that your rights will be upheld in court. You can remain silent, but you must invoke your rights. Otherwise, your silence may be used against you.

What it Means to Invoke Your Fifth Amendment Rights

Invoking your Fifth Amendment rights means that the police must stop all questioning of you. Not only does questioning stop from a person interrogating you currently, but no other police enforcement has the right to interrogate you.

This works in your favor because all questioning must stop, meaning that interrogators cannot simply change rooms and continue the interrogation under a new person’s guidance.

Under your Miranda rights, if you’ve clearly invoked your right to remain silent, any subsequent statements you make should not be used in court.

Your lawyer will begin representing you in this case if you hire a lawyer or work with a public defender.

Clearly Invoking Your Fifth Amendment Rights

Silence alone doesn’t indicate that you’re invoking your rights. Instead, you should clearly state, “I invoke my Miranda right to remain silent,” but you can also say a few other things that will clearly invoke your rights.

  • I wish to remain silent
  • I would like to speak to my attorney

The Supreme Court has stated that invocation of your rights is sufficient, as any reasonable person would understand your request for an attorney. You must be explicit in your language, or the rights may not be invoked.

“Should I be talking to my attorney?” for example, doesn’t invoke your rights. You would need to say, “I want to speak to my attorney,” which cannot be misunderstood and isn’t ambiguous. You shouldn’t use language that indicates that in the future you may invoke your rights because that will not stand up in court.

Interrogators will know the best way to use your words against you unless there is a clear invocation of your rights.

Even prior to your rights being read to you, it’s possible to invoke your rights. You also have the right to invoke your rights again if you believe that your rights are not being upheld or that you were not heard the first time.

Why Calling a Lawyer is a Growing Necessity

Sometimes, you won’t be arrested yet, but the police would like to talk to you. We’re seeing more and more people that have the police call them to “get your side of the story.” Speaking to the police seems innocent enough, but it can work against your best interests.

When you tell your side of the story, you might incriminate yourself. Your words can be used as ammunition against you prior to charges being filed.

Working with an attorney allows you to have protection so that you never have your words used against you.

If you’ve been arrested or the cops are calling to speak to you, reach out right away to schedule a free consultation.