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Fifth Amendment Right to Remain Silent


The Fifth Amendment to the U.S. Constitution protects us from self-incrimination by stating, "no person shall… be compelled in any criminal case to be a witness against himself[.]" From this part of the amendment, the U.S. Supreme Court handed down Miranda. For more information on Miranda, read our August 13, 2014 blog.

The very first part of your Miranda rights is "you have the right to remain silent." We all know that you have the right to not talk and possibly further incriminate yourself, but what does this really mean, and how on earth do you show that you are in fact asserting that right? It begs the question—how do I assert my right to remain silent if I have to tell them I am asserting the right? Technically, don't I have to speak to the police (NOT remaining silent) in order to assert that right? This is crazy—it's all backwards.

You Do Not Remain Silent by Remaining Silent

In fact, it is backwards—you have to tell the law enforcement officer that you are asserting your right to remain silent in order to then remain silent. U.S. v. Davis (explaining the Miranda right to an attorney) adopted the rule that a suspect must make an unambiguous statement about his or her right to remain silent or his or her unwillingness to speak with the police. This means that if a suspect makes a statement concerning silence that is ambiguous or equivocal or makes no statements, the police are NOT required to end the interrogation or ask questions to clarify whether the suspect wants to invoke the right to remain silent. However, just because an officer approaches you does not automatically mean you should invoke your rights.

What To Do?

Taking all of the above together, you have to actually say you want to invoke your right to remain silent. That's right—to invoke your right to remain silent, you must first not remain silent by telling the police you intend to invoke your right, then you can remain silent and not say a word (until your attorney gets there anyway). Some people think that whenever a police officer comes up to you and asks you a question—you should just say "I don't answer questions" or "I am invoking my right to remain silent," however this is unnecessary and somewhat disrespectful at times. Take this analogy for example: blurting out that you do not answer questions to an approaching police officer is to asserting your constitutional rights as using a rocket propelled grenade launcher is to killing a mosquito. Put simply—this is overkill. Invoking the right 24/7 is not always a great idea. Sometimes the police officer just wants some clarification, plus police officers are not the type of people to make mad.

Bottom line, you should always keep in mind that if you find yourself in a situation where the police are questioning you about a potential crime—do not be afraid to invoke your right to remain silent (remember to actually say it) and call your local criminal defense attorney at The Meranda Law Firm, LTD. where we can provide high quality, affordable, and personalized legal services.