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Practical Considerations of the Law: The Right to Remain Silent

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney, and to have that attorney present with you during questioning. If you cannot afford an attorney, the court will appoint one to you free of charge. Do you understand your rights? Do you wish to talk with us?”

The standard Miranda warning is a Supreme Court ordered derivative of the Fifth Amendment to the Constitution. This and other similar statements with minor variations are required by all law enforcement officers across the country both state and federal to be read to a suspect before questioning when the person is in custodial custody. We’ve all seen it on TV a thousand times, but have we ever really considered what to do when confronted with this situation ourselves? Should we invoke our rights? Should we waive them? If we haven’t been read our rights, can what we say still be used against us? Why shouldn’t I talk to the police, they are good guys only seeking the truth, right?

The good news is many people will go their entire lives without running into the situation of having their rights read to them by the police. Good for you. The unfortunate news is that others, often who have not committed a crime, or at least not as serious a crime as the police suddenly seem to be asserting will be confronted with the unfamiliar prospect of being handcuffed, put in a patrol car and hauled off to the police station or jail for questioning. Others may be called in to be interrogated as the police seek to close a case, and may not know their detention status, and while waiting for their rights to be read to them, answer hours’ worth of questions – all of which may be used against them. So, let’s clarify the basics.

When do you have to answer questions from the police? When asked for identification you must produce it or tell them who you really are, and when stopped during a traffic stop you must produce your driver’s license, registration and proof of insurance if possible. THAT’S IT. At no other time can you be compelled to talk with the police. You simply express your desire to invoke your right to remain silent, and all questioning must stop. Alternatively, you can demand to see an attorney, either one you know, or an appointed one. Questioning must stop. BUT, know this, if you start spontaneously yapping after asking for a lawyer, that talk can and will be used against you. You can constructively waive your Fifth Amendment rights by not abiding by them.

When must the police read you your Miranda rights? When you are placed into ‘custodial custody.’ What is custodial custody? It is the point in detention when you are not allowed to leave. This does not mean when you are temporarily detained for investigative purposes at the scene of a suspected crime or during the conduct of a search warrant. The classic test is when in an interview room, you grow weary of where the conversation seems to be going and you stand up to leave. If you are prevented from leaving, you are in custodial custody. If allowed to leave, you are not. Don’t expect the police to explain this all to you as it plays out until the very end when you test it, or have already given them enough to jail you. In other words, don’t wait for a Miranda warning to invoke your right to remain silent.

Should you invoke your right to remain silent? If I had to give one answer to that I would say unequivocally YES! That is at least until you have been given the opportunity to consult with your attorney. In fact, the statement, “Officer, I’d like to talk to you about this matter, but first I want to consult with my attorney,” is a polite way of informing the police that you aren’t going to play their game for the next X number of hours, loading them up with potentially confusing and malleable statements that can be misconstrued and used against you later.

What are some scenarios when invoking the right to remain silent is really smart? Almost always once you sense that you are becoming a focus of the police action. Look, the state has tremendous power and resources to align against a defendant. The investigatory resources of the police department and state investigators, labs, data bases, and the prosecutor’s resources and discretion far exceed anything any criminal defense firm or defendant have at their disposal. Why feed that machine and better enable it to crush you? When pulled over for a possible DUI, do you have to tell the officer where you just came from? No. That you had two beers? No. When repossessing property do you have to admit that you entered the front yard of the person who refused to return your property to you for three months? No. When you defend your home against a burglar, and shoot another human being for the first time in your life, do you, while physically shaking through the natural reaction to such an incredibly stressful situation, have to risk trying to clearly explain everything that happened over the last hour justifying the shooting? No. In each case talking can wait and in some cases you will be advised by your attorney to never talk about it. It is for the state to prove its case against you beyond a reasonable doubt.

Now, I’m blessed with many great friends and acquaintances who through clean living and great respect for the law have either never had a run in with the police, or have yet to have an unfavorable one. They may think that I’m trying to help people get away with crime. Well, that would be to assume that the police are always honest brokers of truth and justice. They aren’t. There are many great officers, several of my family members are such, but there are some who are not, or are having a bad day, or are just not very good at figuring out what is what. At the floor level of policing is the pressing agenda to close cases, to find a workable narrative that answers whatever evidence, complete or not, that there might be. The quest to find that narrative sometimes has little to do with a search for what actually happened. I have seen police reports that claim a domestic violence incident happened in an RV when the alleged victim said it happened in the living room of a large home. We’ve all seen cases in the news where the cops said one thing, but a video proved that what really happened was the complete opposite. Cops get it wrong, and whether on purpose or not is largely irrelevant to what happens to you. By talking with them you are usually only giving them more rope with which to hang you.

It’s best to consider the above before you find yourself confronted with the situation. As a defense attorney I highly encourage you to be thoughtful about police interactions. Do not hesitate to invoke your right to be silent and to consult an attorney. I evaluate defendants. I consider what they tell me in confidence, how they present themselves, how clear they are on the facts, how easily they seem to be intimidated, or how braggadocio they seem to want to be. I also consider how dependent the police are on the defendant’s testimony to prove their case. A defense attorney is looking out for you. No one else in the process is. Think about it.

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