You Do Have A Right to Remain Silent And You Should Use It.

You Do Have A Right to Remain Silent And You Should Use It.

By Curt Schulz

The words “you have a right to remain silent” are almost universally known in our culture through police dramas on television and the movies.  The reading of these words, also known as Miranda warnings or rights, however, is almost universally not understood beyond those simple words.   I have represented thousands of clients charged with criminal offenses and I often hear “they didn’t read me my rights” hoping their charges will be automatically dismissed.

The first misconception is that law enforcement must always read you your rights.  Law enforcement is only required to read you your rights if a) you are in custody and b) they are asking questions, making comments, or making actions that are reasonably likely to elicit an incriminating response.

This begs the question, what does it mean to be in “custody”?  Custody is a formal arrest or when a reasonable person would understand the situation to constitute a freedom of movement of the degree which is the equivalent of a formal arrest.  A formal arrest is easy enough to understand, you are told you are under arrest and typically put in hand cuffs.  The second definition not so much and whenever using a “reasonable person” standard you inevitably enter a world of uncertainty with no bright-line test with the courts having to make judgment calls based on the totality of the circumstances.  This is a fact sensitive inquiry which breeds inconsistencies as judges are merely human and will forever be litigated.  Bottom line: if you are not in custody, there is no requirement you be informed of your right to remain silent even if you are asked incriminating questions or if you are in custody and you make unprovoked statements, those statements can be used against you whether or not you were advised of your rights.

The second misconception is that your charges are automatically dismissed if law enforcement do not read you your rights when required to do so.  Although cases can be dismissed due to a Miranda violation, it is not axiomatic and not a common occurrence.  There are essentially two consequences for Miranda violations: first, the government is prohibited from using your un-Mirandized statements at trial during its case-in-chief and second, they are prohibited from using any evidence obtained because of those statements known within the legal community as fruit from the poisonous tree.   Only where the government’s only evidence against you is your statement linking you to the crime or the only evidence of the crime resulted directly from your statement is a case ultimately dismissed.

Although we have these great protective rights that are afforded to us by our Constitution, they are sadly not used as often as they should be.  I am astounded by the number of cases I have had where charges would not have even been filed had the person simply invoked their right to remain silent.  This applies not only to those that may have committed a crime but to the innocent.  In Kitsap County, most law enforcement agencies do not have body cameras and do not always record interviews at the station.   This is problematic as your words can be taken out of context or even misquoted or understood by the police.  They have hundreds of cases and write hundreds of reports.  You put yourself in a position of your word or memory against a law enforcement officer’s word or memory.  What may seem to you as an innocent comment can be twisted and turned as evidence against you.

There are several reasons most people do not elect to remain silent.  Sometimes people are not aware that they are the ones actually being investigated and elect to talk because they want to help.   Sometimes people are aware they are being investigated but think that talking to the police will get them to change their minds and give them an opportunity to tell their side of the story.  This is faulty reasoning because often law enforcement has their mind made up before they talk to you and you will not be able to talk yourself out of anything.  We all have our side of the story to tell, but let your attorney tell that story. Most have heard the antidote where one person whispers a phrase to another person and as the phrase works its way through a line of people it is far different at the end.  You only want your story told once and that is to a jury.

People elect to talk because they feel some civic duty to cooperate with police and that it will make their situation better if they are viewed as being cooperative or that they do not have a choice but to talk.  We should always respect law enforcement as we should respect any other member of society but refusing to answer questions and electing to invoke your constitutional right to remain silent is not equal to disrespecting law enforcement.

Whenever you find yourself where you are being questioned by law enforcement short of generalized pleasantries, you will never go wrong by invoking your right to remain silent.  Do not wait until you figure out what the questioning is about, until you are in custody, or until they read you your rights.  When in doubt, in a respectful manner simply tell them you are invoking your right to remain silent and cease answering questions.  I have never had a case hurt by the client invoking their right to remain silent, but I have had many cases that were made more difficult when clients waived those rights.  For even greater protections, inform them not only that you are invoking your right to remain silent but that you are invoking your right to an attorney which is another subject altogether.

Sometimes life can put us in situations we never expected to be in.  Thankfully, our Constitution has afforded us great rights to help us in situations that involve law enforcement like remaining silent and the right to have an attorney.  You cannot be punished for invoking these rights and they are there to protect you.  Use them.


Serving Kitsap, Jefferson, Mason Counties and surrounding areas. 360-692-6415