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Adam R. Banner ATTORNEY AT LAW
 
 

Do I really have the right to remain silent?

25-Nov-2016

Probably the biggest mistake anyone makes in a criminal case is talking to anyone other than their lawyer about their case. This is particularly true when someone chooses to speak to the police without an attorney.

Despite the fact that most people know that they have "the right to remain silent," most people don't know exactly what that means. Some think that they have to talk to police and only have the "right to remain silent" after they have been given the Miranda warning. Others know they don't have to talk to police, but think that if they refuse, it will make them look guilty. Still others think that they can just stand mute and that is sufficient to invoke their Fifth Amendment rights.

Any attorney will tell you that you should never talk to the police or other investigative agency without legal counsel. This right to silence and the right to avoid self-incrimination begin from the moment you are questioned by police--you do not have to wait until you are under arrest, even though you will not be informed of your Miranda rights unless or until you are placed under arrest.

However, you have to inform police that you will be invoking your right to silence. If law enforcement agents wish to speak to you or ask you questions, it is important to state unambiguously that you insist upon having an attorney and that you will not answer any questions without your attorney present.

Once you have done so, it is important that you stick by what you have said. You cannot pick and choose which questions you wish to answer. If you begin answering questions after you have said that you are invoking your right to silence, then you have contradicted yourself and effectively waived your 5th Amendment right.

The Fifth Amendment and the subsequent Miranda ruling are intended to prevent a person's silence from being used as an indication of guilt. However, a 2013 Supreme Court ruling does allow prosecutors to use silence as an indication of guilt if the person initially began answering questions but then decided to clam up.

In Salinas v. Texas, a defendant argued that the prosecutor was wrong to use his silence as evidence of guilt; however, the Court ruled that because Genovevo Salinas did not expressly invoke his right to silence, and because he voluntarily answered police questions before falling mute, the prosecution did not violate the defendant's Fifth Amendment rights in using the silence as an indication of guilt:

 

Petitioner, without being placed in custody or receiving Miranda warnings, voluntarily answered some of a police officer’s questions about a murder, but fell silent when asked whether ballistics testing would match his shotgun to shell casings found at the scene of the crime. At petitioner’s murder trial in Texas state court, and over his objection, the prosecution used his failure to answer the question as evidence of guilt. He was convicted, and both the State Court of Appeals and Court of Criminal Appeals affirmed, rejecting his claim that the prosecution’s use of his silence in its case in chief violated the Fifth Amendment.

Held: The judgment is affirmed.

369 S. W. 3d 176, affirmed.

JUSTICE ALITO, joined by THE CHIEF JUSTICE and JUSTICE KENNEDY, concluded that petitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege in response to the officer’s question. Pp. 3−12.

(a) To prevent the privilege against self-incrimination from shielding information not properly within its scope, a witness who “ ‘desires the protection of the privilege . . . must claim it’ ” at the time he relies on it. Minnesota v. Murphy, 465 U. S. 420, 427.

The important things to remember about your right to remain silent are that you (1) must claim it and (2) must consistently stick to it. The best way to do that is to insist upon finding legal counsel, to inform police that you will not speak to them without your attorney, and to follow through with your intentions. Call a lawyer for more information.



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