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Speak up to stay quiet: asserting your right to remain silent

On Behalf of | Aug 12, 2020 | Criminal Defense |

We’ve all seen movies and television shows where a person is arrested and is told, “You have the right to remain silent. Anything you say can and will be used against you in a court of law.” This line is not just used for dramatic effect in these films. You do have a right to remain silent. However, you must take actual steps to assert this right. 

Miranda rights

What we commonly refer to as “Miranda rights” came out of a U.S. Supreme Court ruling in 1966 which requires police officers to inform suspects of their right to remain silent and their right to an attorney. In the decades since that ruling, there has been many disputes over what it takes for a suspect to assert their right to silence. The law has settled to a point where simply remaining silent is not enough. You will have to actually invoke this right for it to take effect.

How to invoke your right to remain silent

To assert your right to remain silent, you can explicitly state, “I’m invoking my right to remain silent.” Or you could say something along the lines of, “I’m not going to speak with you until I’ve spoken with a lawyer.”

The key to asserting your right to silence is make sure there’s no room for ambiguity. Saying something like, “Um, I’m not sure I should be talking to you,” is not enough. Unless you are explicit when invoking your right, the police can continue to question you to see if you will eventually say something incriminating.

The importance of keeping quiet

We tend to want to explain ourselves, to tell our side of the story. You should try to avoid this temptation when you’ve been placed under arrest, even if you’re absolutely innocent. You’re unlikely to talk yourself out of trouble. However, it’s easier than you think to talk yourself into trouble. You have a constitutional right to not incriminate yourself. There’s nothing wrong with asserting this right until you’ve discussed your case with a lawyer.



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