When You Need to Invoke Your Right to Silence

When You Need to Invoke Your Right to Silence

"You have the right to remain silent. Anything you say can and will be used against you in a court of law." This transaction between law officials and a citizen is a frequent occurrence, as they must state your basic rights protected in the Fifth Amendment in most arrest cases. Why? Police officers are required by law to notify of your Miranda rights, which is a protection against self-incrimination.

Following the much talked about case of Salinas v. Texas that started in 1992, the Supreme Court recently ruled that a person's silence can in fact be held against them pre-Miranda rights, meaning before the officer read off your Miranda rights.

Salinas was suspected of a murder committed in 1992, where he was brought in for informal questioning, without having his rights advised to him. Having answered the detective's answers, he fell silent when asked if the bullet shells of his shotgun would match the shells found at the crime scene. Later, his silence on the question was used to in court and suggested he was guilty of committing the murder.

Because of his failure to inform questioners of his choice to remain silent and without having his Miranda rights read to him, his silence was used as substantial evidence to believe that was responsible for killing two people.

How & When to Remain Silent

To avoid having your silence used as evidence in court, two things need to be present:

  1. A police officer must read you your Miranda rights
  2. You must state that you are invoking your right to remain silent

If you are being questioned for any reason and you wish to not answer questions, it is important to express your desire to remain silence by stating something along the lines of "I wish to invoke my right to remain silence" or "I wish to consult with a lawyer."

When in custody and after Miranda rights have been read, if the suspect simply remains silent, they have not actually invoked the right to remain silence. In other words, you need to say something regarding your choice to remain silent in order to be silent.

To receive more information about your right to remain silent, contact Attorney Daniel D. Hajji to speak with a knowledgeable Oakland County criminal defense lawyer.

Categories: Criminal Defense