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You Must Speak to Remain Silent

You Must Speak to Remain Silent


Everyone has heard the Miranda Warnings that police officers give on television shows and in movies. “You have the right to remain silent . . . .” But what do you have to do to exercise the right to remain silent? Say nothing? No, you must speak to remain silent.

First, a little background. The right to remain silent is based on the Fifth Amendment to the United States Constitution. The Fifth Amendment states that “No person . . . shall be compelled in any criminal case to be a witness against himself . . . .” This right to remain silent applies whenever a person is questioned by the police. The right to remain silent should be exercised by every person suspected of, accused of, or arrested for a crime until they have spoken to an attorney.

The right was created in Britain and included in the U.S. Constitution because of the abuses of British government officials. Officers would intimidate or beat people into confessing that they committed a crime. Sometimes they would try to trick the accused person into admitting the crime. Even today, officers use techniques based on psychology and sometimes get people to admit to crimes they did not commit. Techniques include getting the person alone, putting them in an unfamiliar location, pretending to already know the facts they want the person to admit, and pretending to sympathize with the person. To combat involuntary and false confessions, the Founding Fathers raised the right to remain silent to a Constitutional right.

So, how does someone “remain silent?” Under recent federal law, a person being questioned by government agents must speak in order to remain silent. In Salinas v. Texas, decided by the U.S. Supreme Court in June of 2013, the Court stated that a person who does not wish to answer police questions must tell the police that he is exercising his Fifth Amendment right to remain silent. If the person does not tell the police he is exercising his right to remain silent, a prosecutor can argue to the jury that “an innocent person would have answered the questions.”

What should you do if arrested or questioned by the police? First, ask if you are free to leave. If you are, tell the police you are exercising your right to remain silent and you are leaving. If you are not allowed to leave or if they stop you from leaving, tell the police that you want to exercise your right to an attorney and your right to remain silent. If you cannot afford an attorney, ask for a form to apply for a public defender. Do not answer any questions other than your name and date of birth. (Do not lie about your name and date of birth. That is a separate crime.)

Our firm handles criminal defense work and we would be glad to speak with you if you need representation.

By Brian T. Cagle, Esq.