The Fifth Amendment of the United States Constitution provides all citizens with the right to remain silent when questioned by law enforcement officials. This amendment, known as the Miranda Law, is known by most people; however, criminal defense attorneys find that many do not actually understand how it works.
Exercising the right to remain silent and be questioned with an attorney present requires that the person being interrogated understand how and when the Fifth Amendment applies and has stated to any questioning personnel that they wish to remain silent according to that right.
Miranda Warnings and Custodial Interrogation
When a person is stopped by police and questioned, they do not have to answer any questions asked; however, if they are detained or taken into custody, Miranda warnings come into effect. Police are required to read the Miranda Rights when they detain someone for custodial interrogation. If they do not, anything said may not be considered admissible in court as evidence.
Yet as criminal defense attorneys are well aware, there is often a lot of confusion over when Miranda Rights should be read to a person and when it is not necessary. Some courts have recently questioned whether a person has actually invoked their right to remain silent. Therefore, a person being questioned should clearly state that they wish to invoke this right.
Every Person Has the Right to Remain Silent
Every citizen has the right to remain silent, whether they are being casually questioned by the police or taken into custody to be interrogated. In a more casual setting, police may not issue Miranda Warnings and an individual can refuse to answer any questions being asked. If police initiate a more thorough interrogation, whether taking a person into custody or simply requesting more information, Miranda Rights come into play.
When people exercise their right to remain silent until they can speak with criminal defense attorneys, they should provide basic information like name and address; however, they are not required to give anything else. Police will then take them to the police station where they will be given an opportunity to contact attorneys for help.
Invoking the Right to Remain Silent
Most people interpret their right to remain silent as meaning they should stay completely silent and not say anything while being questioned. While this may be what was initially intended by the Fifth Amendment law, criminal defense attorneys know that application of this protection has been interpreted differently at times. The implication here is that a person did not actually exercise their right to silence by refusing to speak at all after being read their Miranda Rights.
There have been a number of court cases where a person’s silence was used against them if they did not verbally state that they wished to remain silent until they had the chance to speak with criminal defense attorneys. Assumption that their silence was enough to invoke this right was determined to be insufficient.
Therefore, it is imperative that anyone who wishes to exercise their right to remain silent must verbalize their request, whether they have been read their Miranda Rights or not. Any time a person feels as if they are being questioned beyond a casual inquiry, it is essential for that person to ask whether they are being detained and if so, to clearly state their desire to remain silent.
The important thing that a person must understand is both their right to remain silent and how that right must be exercised. Criminal defense attorneys recommend that any time someone is stopped and questioned beyond what would be considered as casual, that person should ask if they are being detained, then express their desire to remain silent until they can speak with an attorney. Then there should be no question about whether or not the right to remain silent was actually invoked.
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