Josh McIntosh devotes his practice to serving those in his community by providing them with high-quality, results-oriented legal representation.
This article was authored by Samuel Banasek, a law student at Salmon P. Chase Law School, with guidance from Josh McIntosh.
This collaboration was made possible through the Chase Know Your Rights Pro Bono Program.
You have the right to remain silent. It’s a phrase that every American has heard, whether through movies, T.V, or their own experience. The Miranda warning is a hallmark of the American criminal justice system, one that is repeated so often that people lose sight of what it actually means. In reality the Miranda warning is not just a speech police have to give as they arrest a suspect, but a reminder of that suspect's constitutional rights. Rights that can be taken away if a suspect fails to heed the warning.
Let’s start with the actual wording of the Miranda warning: “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. If you cannot afford an attorney one will be provided for you.” As with all legal language every word of the Miranda warning is important, and has been interpreted to have a specific meaning. Though the warning acts to protect suspects, it allows them a narrow course of action if they want to retain their rights.
How to Exercise Your Rights:
If a suspect wants to exercise their right to remain silent they must do so unambiguously. A suspect may do this by stating: “I don’t want to answer any questions” or, “I need to speak to my lawyer first.” The key is for a suspect to indicate that they do not want to be subjected to police interrogation, and to do so as clearly as possible.
The Miranda warning was created to protect against the inherently coercive nature of police interrogation. Even though the warning exists police may still attempt to coerce a suspect into waiving their rights. Quite simply, police want suspects to make incriminating statements and will go to whatever lengths the law allows to obtain these statements. It is not enough to merely remain silent. If a suspect does so the interrogation may continue, and if the police elicit any kind of response it may be used as evidence. The best way for a suspect to protect their Miranda rights is to clearly state that they will not answer any more questions. If there is any question as to the suspect’s intent the interrogation may continue, which could result in incriminating evidence.
Even if a suspect asserts their right to remain silent the police may still attempt to resume interrogating that suspect later on. This is why the second part of the Miranda warning is so important: the right to an attorney. If a suspect asserts their right to an attorney, they may not be questioned further until an attorney is present. It is always better for a suspect to assert both their right to an attorney and their right to silence, even if the suspect does not have access to an attorney when the right is asserted. A suspect cannot go to trial without an attorney, so even a suspect that cannot afford an attorney will have one appointed eventually. Until this happens, a suspect that has clearly asserted their right to have an attorney present during questioning may not be interrogated further. Asking for the presence of an attorney is the best way for a suspect to exercise their Miranda rights.
Why not Remain Silent?
The difference between remaining silent and exercising the right to remain silent is incredibly important. Remember that unless the right is specifically invoked the police may continue to question a suspect and admit their responses into evidence, even if the response is to remain silent. If a suspect exercises their right it demonstrates that they are remaining silent intentionally, not just because they don’t want to give an incriminating answer to a question.
For example: a suspect is arrested on suspicion of drug possession. Illicit substances were found in their apartment, and police began questioning the suspect to establish a connection between the suspect and the substances. In this case, the suspect can remain silent when the police ask questions like “was this substance yours?” or “how did these drugs get in your apartment?” However, if they do, the prosecution can admit this silence as evidence and the judge or jury might assume that the suspect remained silent because the question had an incriminating answer. On the other hand, if the suspect exercises their right, the interrogation must cease, the silence cannot be used as evidence, and any further questions may be deflected by an attorney, which does not reflect as strongly on the suspect.
When the Right Applies:
It is important to remember that the warning only applies during interrogation while a suspect is in custody. A suspect is generally considered in custody if they are not free to leave. This can happen in a holding cell, during the arrest process, or even in the suspect’s own home. If a suspect is unsure whether or not they are currently in custody they can ask questions like “am I free to go?” or “am I being arrested?” If the suspect is not in custody the warning does not need to be given, however, the rights remain the same. A suspect always has the right not to answer any questions that might incriminate them whether in custody or not. Refusing to answer, insisting on the presence of an attorney, or simply walking away are all acceptable ways to cut off questioning while not in custody.
A suspect who has asserted their Miranda rights may still waive them later on. They may do this voluntarily, through signing a statement giving up their Miranda rights, or in some cases, involuntarily. While the police are not allowed to interrogate a suspect who has asserted their right to remain silent, they may question a suspect if that suspect initiated the conversation. This doesn’t apply to every conversation, a suspect can ask things related to the details of their custody (“can I go to the bathroom?” “can I make a phone call?”) without waiving their Miranda rights. However, if a suspect asks the police a question, or makes a statement, relating to their ongoing investigation the suspect is considered to have initiated a conversation and waived their Miranda rights. Anything a suspect says from this point on is admissible.
Similarly, a suspect who has waived their Miranda rights can always choose to exercise them later on. Even if a suspect agrees to subject themselves to interrogation, they can cut off questioning at any time. As before, this must be done unambiguously, either by stating that they want to remain silent, that they wish for the presence of an attorney, or both. If this happens, the police must honor the suspect’s rights or risk gathering inadmissible evidence. Although, the police can use anything the suspect said before the right was invoked.
Finally, there is the question of what happens if the police do not read the Miranda warning. In this case the suspect’s rights remain the same. That is, they still have the right not to respond to interrogation. However, if a suspect is interrogated while in custody and the warning is not given, any answers the suspect gives will not be admissible as evidence. Because of this, police will likely act to inform a suspect of their Miranda rights as soon as possible.
● The right to remain silent does not apply if the suspect remains silent, it must be asserted.
● Always assert both the right to silence and an attorney, even if a suspect has no access to an attorney one must be appointed for them eventually.
● Assert the right clearly, leave the police no room for misunderstanding or misinterpretation.
● After the right is asserted, do not say anything that relates to the investigation, as it might waive the right and allow the police to resume interrogation.
● If the police do not read the warning, it is possible that anything a suspect says will be inadmissible.
● The warning was created to combat the use of coercive tactics by police, but they can still attempt to coerce a suspect to surrender their rights.