Whether through personal experience or having seen it on television, you have likely heard the Miranda Warning. These rights are read to individuals as they are being arrested. One of these rights is the right to remain silent. This right is fundamental and one that we strongly recommend you invoke if you are ever in a situation where the police are asking you questions and you are not a witness. You should remain silent in the face of law enforcement questions for many reasons. If you have questions about your right to be silent or have already answered questions for the police and now find yourself facing charges, you may wish to speak with a New York criminal defense attorney before further steps are taken. Call the Law Office of Benjamin Greenwald at (845) 567-4820 to schedule a consultation and learn more about your legal rights and options.
What Is the Right to Remain Silent?
The right to remain silent is designed to protect individuals who are being questioned by law enforcement or who are on trial for a crime. This right helps people avoid making self-incriminating statements that could lead to their conviction. The right also prevents others from making negative judgments because the individual has refused to answer questions.
Most people know the right to be silent from the Miranda Warning. Individuals should know that their right to remain silent exists before they are read the Miranda Warning, however. This is important because, in the case of Raffel v. United States, the United States Supreme Court ruled that once an individual cooperates with law enforcement by answering questions or consenting to a search, they are giving up the right to remain silent and must continue cooperating throughout the arrest, trial, and judgment. This means that if an individual cooperates before being read their Miranda rights, they may be forced to continue cooperating. Therefore, knowing that they can remain silent before their rights are read to them allows the individual to protect themselves even before they may be placed under arrest.
Why Is Exercising Your Right to Remain Silent Important?
Exercising the right to remain silent can be crucial. There are several reasons individuals should consider when deciding whether to exercise their right to be silent.
Preservation of Your Rights
As the Miranda Warning states, anything an individual says can be used against them. By remaining silent, individuals can preserve their Fifth Amendment rights. This amendment and the right to silence prevent self-incrimination and help individuals maintain control over the information they choose to disclose.
Prevention of Miscommunication
Under the stress of being arrested or even simply being momentarily detained by police, an individual may feel strong emotions and struggle to think clearly. As a result, they may say something inaccurate or phrase it in such a way that it can be misinterpreted. Silence prevents these misunderstandings by allowing the individual time to collect their thoughts and respond more mindfully.
Protection of Privacy
Police questioning can be invasive as they try to get the information they seek regarding a crime. By opting to remain silent, individuals can keep their private affairs private and maintain the privacy that all people deserve. This may also allow individuals to protect the privacy of others.
Preservation of the Presumption of Innocence
The American justice system presumes the innocence of all suspects until they are proven guilty in court. The prosecution bears the burden of proving this guilt. By remaining silent, individuals avoid saying anything the prosecution may use to prove their guilt.
Protection Against Coercion
When an individual is being questioned by law enforcement, those questions can be quite forceful. In some cases, they may even be abusive. If the individual answers these questions, they may be coerced into saying something untrue or that they would not have stated otherwise. When that happens, their criminal defense attorney must argue to get those coerced statements disregarded. By remaining silent, the individual cannot be coerced, and there are no statements that may hurt them.
Preservation of the Defense Strategy
While the defense must provide the prosecution with a lot of information, and vice versa, there is no requirement to disclose every detail of the defense strategy. Depending on what an individual says, they may inadvertently give away defense strategy details that would allow the prosecution to begin building a stronger case against them. By remaining silent, individuals can be certain they are not giving away any defense strategy details.
Assurance of Due Process
Due process ensures that all defendants are treated equally, their rights are upheld, and that they are protected against erroneous convictions. If an individual does not invoke their right to be silent and speaks to law enforcement instead, they may say something that can be used to to push a plea agreement, cause an erroneous conviction, or otherwise violate their rights.
Cannot Be Used Against You
Perhaps one of the most important reasons to remain silent is that asserting this right cannot be used against the individual. Judges, juries, and others cannot assume that remaining silent implies the individual is guilty. However, if the individual chooses not to be silent, the things they say can be used against them to try to prove their guilt.
Asserting Your Right to Remain Silent
In choosing to remain silent, silence itself is insufficient to assert the right. Silence is unclear and may instead be interpreted as guilt. When individuals assert their right to be silent, they must verbally assert the right. They must use clear, concise statements such as, “I am invoking my right to remain silent,” or “I am invoking my Fifth Amendment right to be silent.” The individual may also want to invoke their right to an attorney at this time. The Law Office of Benjamin Greenwald may be able to assist you in asserting your right to remain silent.
While individuals often invoke their right to remain silent after being read the Miranda Warning, it is important to know that this right applies even when they are not under arrest. This can be crucial because if they begin cooperating before arrest, they may be required to continue cooperating. Additionally, once the right has been invoked before or after arrest, the individual must remain silent. If they re-engage and ask the police officer questions about the case, the investigation, or the officer’s questions, they are waiving the right to silence, and questioning can resume. Another important note is that an officer’s failure to read the Miranda Warning does not mean the charges will be dropped. A defense attorney can argue to prevent the statements made from being introduced as evidence, but the individual may still stand trial.
The Fifth Amendment
The Fifth Amendment grants individuals the right to silence, specifically, the part which says individuals cannot be compelled to be a witness against themselves in a criminal case. However, while this amendment grants the right to remain silent, “taking the Fifth” or “pleading the Fifth” only applies when the individual is somehow detained by law enforcement. If the individual is free to leave, they can decline to answer questions but they do not need to expressly state that they are invoking their right to remain silent. However, if they are stopped for a traffic stop or have been arrested, they would need to state they are invoking that right.
While the Fifth Amendment right to remain silent applies to everyone, including noncitizens, there are instances where it cannot be used. One instance is when the individual has been granted immunity from prosecution. If the individual has been granted immunity, the prosecution has promised not to use their statements against them, thus removing the potential for self-incrimination. Another instance is regarding crimes for which the individual was already convicted and sentenced. Again, because the conviction and sentencing have already taken place, the potential to self-incriminate is removed.
The Sixth Amendment
Before invoking their Fifth Amendment right to remain silent, individuals should remember their Sixth Amendment right to the assistance of counsel. While remaining silent can help individuals avoid self-incrimination, it will not necessarily make the investigation go away. Speaking up to ask for an attorney will not waive the right to be silent because asking for an attorney also stops the investigation. However, the sooner an individual asks for an attorney, the sooner they will have one who can assist them in answering law enforcement questions.
How Can an Attorney Assist You When Asserting Your Right to Be Silent?
A clear verbal statement indicating you are asserting your right to remain silent is all it takes to invoke the right. However, an attorney may be able to assist you in determining whether there are some questions you should answer and how to answer them in a way that minimizes the possibility of misinterpretation or misunderstanding. An attorney may also be able to recognize if any of your other rights are being violated and speak up on your behalf. If you have other questions regarding when or how to assert your right to be silent, the skilled New York criminal defense attorneys with the Law Office of Benjamin Greenwald may be able to assist you. Call (845) 567-4820 to schedule a consultation and learn more about your legal rights.
