How Does The Right To Remain Silent Work?

Categories: criminal defense

Criminal Defense

You have no doubt heard the familiar words on your favorite TV crime show or movie: “you have the right to remain silent.” While many people understand in the abstract that they are not required to tell police officers everything, or answer all their questions without an attorney, few understand when the right to remain silent can be properly invoked, how to invoke it, and what to do if police are pressuring you to talk.

Without a full understanding of your rights, it can become easy to be pressured or persuaded by police into providing more information than you otherwise would, which can lead to difficult issues for a criminal defendant down the road.

Do I Have A Right to Remain Silent in Wausau?

Every individual has the right to remain silent in certain circumstances. This right is enshrined in the Fifth Amendment of the U.S. Constitution, which protects all U.S. citizens from having to provide information that might be self-incriminating.

The right to remain silent arises in two contexts: (1) when giving testimony under oath and (2) in a police interview or interrogation. During the course of litigation, individuals can be deposed by the opposing party. During this deposition they must give testimony under oath, just as they must at trial. In these circumstances, if the person being interviewed believes that they are being asked to give testimony that could prove incriminating in that proceeding, or in another one, they can “take the fifth,” remain silent and decline to answer the questions.

Taking the fifth and invoking your right to silence can be an important way to avoid having to provide information that could be used against you at a later date. But it can also carry some risk when used in civil cases. While pleading the fifth cannot be used against you in a criminal matter, you can sometimes have adverse inferences drawn from taking the fifth in a civil case.

The other place where you have a right to remain silent is during a police interrogation or interview. But knowing when the right to remain silent can be invoked and what police must do in response is more complicated.

During a police interrogation or interview, the individual being interviewed has what are known as Miranda rights, and the right to be informed about their Miranda rights. Miranda rights include the right to remain silent and the right to an attorney.

Miranda rights attach whenever an individual is placed in the custody of the police. Being in custody means any situation where you have been detained and do not feel the freedom to leave. So this could be while in handcuffs on the street, or in a police interrogation room. But if you are stopped on the street by a police officer who has a few questions, this is usually not a “custodial” situation and police don’t have to inform you of your Miranda rights.

How Do I Invoke My Right To Remain Silent?

If you are in a police interview or interrogation, you can invoke the right to remain silent by stating that you will not answer any questions until you have an attorney present. Once you have made this request, all questioning by the police should cease until your attorney is present.

Although this seems easy in practice, invoking your Miranda rights can be easier said than done. Being in a police interrogation can be very overwhelming and intimidating and there is often a compulsion to say whatever can be said in order to get you out of the room.  Remaining in silence is often very difficult for many people.

Individuals in a police interrogation must also clearly invoke their rights. Simply remaining silent is not enough. When an individual sits for a period of time in silence and then begins to voluntarily offer information, that information can be used against him or her at trial because the right to remain silent was not clearly invoked before the information was offered.

Similarly, shaking your head no to indicate you don’t want to talk is not enough to invoke your rights. You must make an affirmative statement that you are invoking your Miranda right, or your right to remain silent, or that you want to talk with an attorney before speaking further to police.

One final thing to understand is that you must clearly invoke your right to remain silent at that time. Saying, something to the effect of “maybe I shouldn’t answer your questions” or “I plan to invoke my right to remain silent when my mom gets here” is not enough to actually properly invoke your rights.

What If Police Don’t Respect My Right To Remain Silent?

If you have clearly and explicitly invoked your right to remain silent and the police continue to question you, pressure you, or harass you to talk, any information they obtain is in violation of your rights and cannot be used against you at trial. Evidence procured as the result of a constitutional violation is not admissible.

If you are in this type of a situation, it can be very intimidating, but the best thing to do is to remain silent as much as possible. By knowing your rights you know that the police are not entitled to any information from you after you have told them you want to remain silent, and you are doing nothing wrong by refusing to answer their questions.

Disclaimer: This Article Is Not Legal Advice.

Never rely on an article for legal advice as the law frequently changes, information may not be accurate, there may be exceptions to a rule, and reliance may be detrimental. Always consult one of our experienced attorneys for competent, current, and accurate legal advice.

Wisconsin Attorneys Helping Clients Fight For Their Constitutional Rights

Although rights like the right to remain silent are clearly enshrined in our constitution, this does not prevent them from being abused, or prevent police and law enforcement from taking advantage of individuals who are not well-informed of these rights.

There are many nuances to the situations where police may be able to use your statements against you even if you believe you have invoked your rights. In order to avoid these types of issues, the best thing to do is to learn about your rights as best you can, speak with an attorney as soon as possible, and remain silent.

If you’re currently involved in a criminal proceeding and concerned about how your statements might be used against you, the criminal attorneys at Crooks, Low & Connell, S.C., are available to speak with you and may be able to assist you in fighting for your Miranda rights at trial. For more information, contact us online or at (715) 842-2291.