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Just what is the 'right to remain silent?'

Helping People Defend Their Rights Since 1980

Most people can recite the Miranda warnings verbatim from years of watching "Law and Order" and other police shows. We see our favorite TV cops giving these warnings as they're cuffing arrestees, starting with, "You have the right to remain silent. Anything you say can and will be used against you in a court of law."

However, it's not always that simple, and sometimes what you don't say can also be used against you. First, not everyone is Mirandized the moment they are arrested. Court rulings have determined that suspects need only be Mirandized before being interrogated. That can mean hours in police custody without having your rights read to you. In some cases, particularly involving white collar crime, law enforcement officials question people at length before arresting them.

Some people take the "right to remain silent" too literally. You are required to identify yourself to law enforcement officers if asked. You should also provide documentation like driver's license, registration and proof of insurance, when requested, if you are stopped while driving.

It's usually a good idea to answer basic questions like where you're going. Refusing to provide simple information can start things off on the wrong foot. However, if the officer or other official like a prosecutor or investigator continues their questioning, it may be wise to politely and firmly ask for an attorney.

Sometimes officers get people to talk by saying they're not under arrest. If that happens, ask if you may leave. If you can't, you're under arrest whether they use that word or not. Either way, you have a right to invoke your Fifth Amendment privilege. State politely but firmly that this is what you're doing. Don't just stay silent.

One man in another state found his silence used against him at trial. After a fatal car accident, he was detained by police at the scene in the backseat of their cruiser. During that time, as the prosecutor told jurors during his vehicular manslaughter trial, he never asked about the condition of the victims. She pointed to that silence as "consciousness of his own guilt."

Common sense can be key when exercising our rights under the law. However, being confronted by police or other authorities can prevent people from thinking clearly. At whatever point our clients contact us in their experience with the justice system, we work to protect their rights.

Source: The Law Office of Jerome Paun, "Know Your Rights," accessed June 24, 2015

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