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The Right to Remain Silent: How and When It Should Be Invoked

a woman covering her mouth with both hands

Although popularized as articulated in the famous United States Supreme Court case Miranda v. Arizona, (due to 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”), the right to remain silent is a fundamental American constitutional right. Derived from the Fifth Amendment, the right to remain silent is actually the right not to “be compelled in any criminal case to be a witness against” yourself. This means that you cannot be forced to reveal information, either to law enforcement or the court, that may be used against you in a criminal case.

When Is the Right to Remain Silent Invoked?

Unlike what you may see on television when the arresting officer slaps on a pair of handcuffs and begins reciting a series of rights, the right to remain silent has actually not been triggered at this stage. You will rarely, if ever, hear a law enforcement officer reciting your rights at the time of arrest. In order to invoke the right to remain silent, there are two key factors: (1) custody and (2) interrogation. Simply being taken into custody is not enough. You must actually be in police custody and be subject to police interrogation in order to trigger your right to remain silent. This means you may not have the right to remain silent during the booking process. 

When Should You Invoke the Right to Remain Silent?

It is a natural human response to want to cooperate with law enforcement officials, as many individuals believe if they do not cooperate, law enforcement will assume they are guilty of the underlying offense. However, it is generally unwise to speak with law enforcement officials while in custody outside of the presence of an experienced criminal defense attorney for the following reasons:

  • You may admit to an offense you were unaware of, i.e., you may admit you were trespassing in an attempt to establish an alibi
  • You may provide law enforcement with information about your state-of-mind that can be used to establish certain criminal elements
  • You may come across as nervous, which can lead law enforcement to believe you are hiding something
  • You may inadvertently fall for a police interrogation tactic (police are allowed to provide you with untruthful information) and admit to the offense

Protect your Rights: Contact an Experienced Florida Criminal Defense Attorney Today

The right to remain silent was established in the nation over two hundred years ago as a means of protecting you against government overreach. Do not neglect this essential right if you have been or anticipate being charged with a criminal offense. You always have the right to have a criminal defense attorney present when speaking with law enforcement. Don’t delay calling the Khonsari Law Group today for a free, no risk consultation at (727) 269-5300 or contact us online. Our criminal defense lawyers have the experience needed to protect your rights.



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