It is virtually impossible to watch a police reality show or a Hollywood crime drama without hearing at least one police officer read a suspect his/her Miranda rights.
As a result, just about everyone knows “You have the right to remain silent…” Just because you have heard these rights being read to someone on television or on the big screen, however, doesn’t necessarily mean you truly understand your rights, nor when and how to exercise them.
Even the most law-abiding citizen can find himself/herself in a situation where understanding your right to remain silent is important.
With that in mind, a Nebraska criminal defense attorney explains your right to remain silent in a way that the average person can understand and put to use if necessary.
Where Is Your Right to Remain Silent Found?
You likely know that your right to remain silent stems from the U.S. Constitution. However, you might not know that nowhere in the Constitution does it actually say you have a right to remain silent. Most of the rights with which you are likely familiar stem from the first ten amendments to the U.S.
Constitution, collectively referred to as the “Bill of Rights.” The Fifth Amendment is where the right to remain silent derives from. The 5th Amendment reads:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. (Emphasis added)
As you can see, the 5th Amendment does not specifically indicate you have a right to remain silent. Instead, that right has been interpreted from the section that reads: “nor shall be compelled in any criminal case to be a witness against himself.”
Why Are They Called “Miranda” Rights?
You have likely heard the rights read to a suspect referred to as “Miranda Rights.” They are called Miranda rights because of the noted case of Miranda v. Arizona, wherein the U.S. Supreme Court originally held that police officers were required to advise someone under arrest of his/her Constitutional rights.
When Does Your Right to Remain Silent Apply?
This is one of the biggest misconceptions surrounding your Miranda rights in general.
The police do not need to read you your rights every time they come into contact with you. Although your right to remain silent applies at all times, the police are only required to advise you of that right if you are in custody. Moreover, they only need to read you your rights if they plan to question you.
For example, if a police officer simply walks up to you and starts talking to you, and you choose to answer, your rights have not been violated because you were not in custody at the time.
Likewise, if you are in custody, and you start talking without the police actually asking you any questions, your rights have not been violated, even if they never read you your rights.
To summarize, the police are only required to advise you of your right to remain silent (and your other rights) if:
- You are in custody, and
- They plan to ask you questions
When and How Can You Assert Your Right to Remain Silent?
This one is simple. Anytime. You can assert your right to remain silent at any time, even after you start answering questions if you decide you wish to stop.
Although there are no “magic words” required, it is best to be clear and say something along the lines of “I wish to assert my right to remain silent. I do not want to answer any (more) questions without an attorney present.”
Note: A suspect’s silence does not have to be interpreted as the suspect asserting his/her right to remain silent. Moreover, although asserting your right to remain silent cannot be used against you in court, you must actively assert that right. Your silence could potentially be used against you if you do not speak up and specifically say you wish to invoke your right to remain silent.
The Police Never Read Me My Rights So the Case Has to Be Thrown Out …Right?
One of the most common things criminal defense attorneys hear from clients is “The police never read me my rights so the case has to be thrown out, right?”
Actually, it doesn’t work quite like that. Named for the case that established the need for a law enforcement officer to provide the warnings, your Miranda rights only attach when you are in custody.
In other words, the police are only required to read you your rights if you are considered to be in custody, and even then, only if they plan to question you. So if a police officer knocks on your door and asks to talk to you, no Miranda warning is required.
You do, however, still have a right to remain silent; however, the police officer is under no obligation to advise you of that right. By the same token, if that officer decides to arrest you at some point, but has no intention of questioning you, there is also no requirement that you be advised of your Miranda rights.
Only when you are in custody and being questioned must a law enforcement officer advise you of your Miranda rights. If a law enforcement officer does question you while you are in custody without first advising you of your Miranda rights, anything you say in response to that questioning would likely be inadmissible at trial because your right to remain silent was violated by the police officer.
Contact An Experienced Nebraska Criminal Defense Attorney Today
If you have been charged with a criminal offense in the State of Nebraska, it is certainly in your best interest to consult with an experienced Nebraska criminal defense attorney right away.
In Nebraska, contact Petersen Criminal Defense Law 24 hours a day to discuss your case with an experienced criminal defense attorney.
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