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Invoking the Right to Remain Silent

In general, Miranda rights include two basic rights: the right to remain silent and the right to have an attorney present during interrogation. As with the right to an attorney, to gain the full protection of the right to silence, a suspect must unequivocally invoke the right to remain silent. Simply remaining silent does not trigger the right to have interrogation cease.

Law enforcement officers must inform suspects of their Miranda rights to remain silent and to have an attorney present. As long as the suspect understood these rights as explained, statements made in subsequent interrogation may be admissible as evidence against the suspect if he or she did not clearly invoke the right to remain silent or the right to an attorney.

Practically speaking, this means that if police read a suspect his or her Miranda rights, the suspect understands (and even remains silent for a period), police may continue or later attempt to interrogate the suspect. The Fifth Amendment will not prevent statements made after a period of silence from being used as evidence, unless the suspect clearly communicated a desire to invoke the right to remain silent.

Even when a suspect fails to properly invoke the right to remain silent, it must be established that the suspect waived the right in order for statements made during interrogation to be admissible as evidence against the suspect. However, this waiver does not need to be explicit. Suspects can waive their right to remain silent if they proceed to make voluntary statements after being informed of and understanding their Miranda rights.

How Can You Clearly Invoke Your Right To Remain Silent?

Because silence and body language are ambiguous, perhaps the clearest way to invoke your right to remain silent is to tell an interrogator, "I invoke my Miranda right to remain silent." However, there are other ways to clearly invoke. For example, among other things, you can state:

  • That you're exercising your right to remain silent;
  • That you want to remain silent;
  • That you only want to speak with your attorney; or
  • That you want to speak with your attorney first.

While there are no specific words required to invoke, the Supreme Court has held that an invocation is sufficient so long as "a reasonable police officer, in the circumstances, would understand the statement to be a request for an attorney."

One thing to be careful with are statements indicating a likely intent or a future intent to invoke your right to silence. For example, the Supreme Court has determined that the statement, "maybe I should talk to a lawyer" is ambiguous and does not constitute an invocation. Also, while the statement, "I plan to invoke my right to silence," could be considered an invocation, it could also be interpreted to mean that you will invoke the right in the future and not at the present.

Skilled interrogators understand how to parse your words and to create ambiguity, so your best bet is to leave them no wiggle room when invoking your rights. Also, you don't need to wait for your Miranda rights to be read to you before you invoke. In fact, you can invoke your rights as soon as you're being arrested, even before your rights are read to you. While not always required, it also doesn't hurt to continue invoking your rights especially if you have reason to believe that your invocation was not heard or understood.

What's Happens When You Invoke Your Right To Silence?

As soon as you invoke your right to remain silent, all police questioning must stop. Your right is not specific to the person questioning you, so law enforcement cannot simply switch interrogators and continue questioning. If the police continue questioning after you've clearly invoked your right to remain silent, then this would be a violation of your Miranda rights and any subsequent statements you make may not be used against you in court.

Learn More About Your Miranda Rights: Get a Free Case Evaluation

The right to remain silent is central to the U.S. criminal justice system, since it allows suspects to secure legal counsel first and also minimizes damaging statements made under duress or fear. Learn more about your so-called Miranda rights by having a criminal defense attorney evaluate your case for free.

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