Skip to main content

Miranda Rights - The Right to Remain Silent

Posted by attorney Shane Kope

When Must The Police Read Me My Rights?

The police must advise suspects of their "Miranda Rights" prior to conducting a custodial investigation. "Miranda rights" consist of the right to remain silent, the right to an attorney, and the right to an appointed attorney if a private one cannot be afforded. If a suspect is not in police custody, the police are not obligated to warn the suspect of his "Miranda Rights."

** The police are well aware of when it is required to read suspects their "Miranda Rights." Before questioning, the police may tell the suspect, "You are not under arrest, and are free to go, but we would still like you to answer some questions first." If the suspect then provides incriminating answers to those questions, he is arrested. The questioning, being voluntary and non-custodial, is usually admissible in court.

Can The Police Use My Statements If They Do Not Read Me My Rights?

Sometimes, a suspect will make voluntary statements after he is arrested. The police are not required to warn suspects not to make voluntary statements, as long as they do not elicit those statements. Sometimes, suspects will express their surprise at being caught by the police with statements like "You got me." At other times, suspects will try to justify their actions with statements such as, "I don't know why I did it," or, "The drugs weren't mine; I was carrying them for a friend." Those statements, if made spontaneously, will almost always be admissible in court.

Better To Remain Silent?

When a person chooses to remain silent AFTER receiving Miranda warnings, that silence cannot be used against him; however, if a person remains silent BEFORE receiving Miranda warnings, it is possible for that "pre-Miranda" silence to be used against him. For example, if a person is arrested for, or accused of murder, a typical response would be to express disbelief and /or present an alibi. It would be unusual for a person to simply remain silent after being informed that he is being wrongfully charged with murder (even people who know their right to remain silent will often express surprise). A prosecutor may subsequently argue that the "pre-Miranda" silence resulted from the fact that the defendant was not surprised he was a suspect.

Can I Prevent Pre-Miranda Silence?

If you are under investigation for a criminal offense, you can prevent "pre-Miranda" silence from becoming an issue by stating, "My attorney told me to never to talk to the police without talking to him first. Do I have to answer your questions?" By utilizing this method, you are forcing the police to inform you of your right to remain silent from the very beginning; afterward, no negative inference can be drawn from you exercising that right. Simply put, you should make your attorney responsible for your choice to remain silent; it looks much more suspicious if you simply refuse to answer questions than if you offer the explanation that your attorney gave you standing advice not to answer questions.

Does Exercising My Miranda Rights Make Me Look Guilty?

While it is true that the police tend to draw a negative inference from a suspect’s refusal to answer questions, or where a suspect hires an attorney before he is charged with a crime, this inference is ultimately nothing more than an opinion that cannot be used as evidence. A voluntary statement, on the other hand, can always be used as evidence. In fact, there are many cases where the only evidence used to prosecute a defendant is his confession; and there are just as many where an innocent person finds that the police have misinterpreted his statements and then used those statements against him. So, if you are detained and questioned, you should invoke your Miranda Rights without worrying about what the police think.

What If I Make A Statement After I Invoke My Miranda Rights?

The police must cease interrogation if you exercise your right to remain silent or request an attorney. However, if you voluntarily (without solicitation) make a statement after you choose to remain silent or request an attorney, this statement can be used against you. It should be noted that the request for an attorney is "more powerful" than a request to remain silent; courts tend to view police claims that a suspect changed his mind about having an attorney with more suspicion than claims that the suspect changed his mind about remaining silent.

** The police use numerous techniques to trick suspects into changing their minds about remaining silent. One simple technique is to use silence against the suspect. An example of this is where the officer explains, "You don't have to make a statement, but I still have to write this report, describing what everybody says that you did." The officer then begins to type his report, saying nothing to the suspect. It is common for the suspect to break the silence by making a statement.

Author of this guide:

Was this guide helpful?