You have probably heard of someone being read their Miranda Rights or "pleading the fifth" when arrested. However, people often misunderstand their right to remain silent and their misunderstanding can hurt their case.
Is silence golden?
It is commonly believed that once you invoke your right to remain silent until you can consult with an attorney, the police will stop questioning you.
However, this is not guaranteed. Today, officers could continue to ask you questions and seem non-threatening to gather evidence from any statement you make. If you start speaking again after you have invoked your right to remain silent, it usually implies that you are waiving your right and those statements can be used against you.
It is important to remember that if you are not under arrest, police officers do not have to read you your Miranda Rights. Being polite to police officers is usually best, but in some situations being helpful can hurt you.
What should you say?
If you want to remain silent and protect yourself against self-incrimination, it is essential that you make a clear statement using the present tense. There is no exact statement you must use, but there are better phrases than others. The following are examples of clear statements:
- "I want to remain silent"
- "I want to speak with an attorney before I answer any questions"
- "I want to speak only to my attorney"
- "I am invoking my right to remain silent"
Avoid using the words "maybe" or "I will" as these could be ambiguous and might not protect you.
In addition, if you are being questioned outside of a court setting, avoid using the popular phrase "I plead the fifth (amendment)." This phrase is more accurately for someone on the witness stand in court and may not protect you during questioning.
If you are arrested and are read your Miranda Rights, most attorneys recommend that you invoke your right to remain silent immediately. If you are worried anything you say could be misunderstood, even if you have not committed a crime, it may be better to remain silent until your attorney is present.