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Matthew Radefeld & Dan Juengel
Matthew A. Radefeld and Daniel A. Juengel

Understanding what your right to remain silent really means

On Behalf of | Feb 19, 2020 | Criminal Law |

The Miranda Warning is a familiar aspect of criminal proceedings, even to those who have never faced arrest. Thanks to the many crime shows on television, many Americans have some idea of what “the right to remain silent” means in an arrest setting and possibly even its relevance to a criminal case. Unfortunately, it may not be a completely accurate idea.

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 appointed to you.”

Law enforcement officers must read individuals these rights upon arrest. However, if you find yourself in the daunting position of hearing the Miranda Rights, you should know that remaining silent isn’t necessarily enough to protect you from incriminating yourself.

The fine print

What many people don’t know is that the police can still interrogate you if you exercise your Miranda rights by staying silent. Furthermore, simply remaining silent while the police question you can, as in the case of Berghuis v. Thompkins, lead to an incriminating slip-up deep into the interrogation. This case led to a clarification of Miranda law as it presented an issue that the Supreme Court had never taken a position on before.

What happens when an individual who has supposedly exercised his right to remain silent—though not explicitly—breaks that silence during an interrogation? Does he waive his Miranda Rights?

Amid other rulings, the Supreme Court decided that Thompkins did waive those rights when he answered the officer’s questions, setting a noteworthy precedent.

What this means for you

In order to exercise your Miranda rights in a legally binding manner, you must speak aloud your intent to remain silent. After you request a lawyer, you could say something to the effect of, “I don’t want to talk,” or “I’m exercising my right to remain silent.” Then, keep to your word and remain silent. This will preclude an interrogation and prevent self-incrimination.