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Invoking your right to remain silent: It's not like in the movies

You may have a difficult time finding someone here in California who hasn't watched a movie or television show in which a person under arrest hears his or her Miranda rights. The words, "you have the right to remain silent" probably conjure pictures in your mind of someone being led off to a police car in handcuffs from your favorite movie or TV show.

The suspect then simply says that he or she wants an attorney and all questioning by police stops. In reality, invoking your right to remain silent is not quite that simple. Hopefully, you will never need to know how to properly assert your right to remain silent, but should the need arise, you may want to know.

Remaining silent about your right to be silent

Yes, you have the right not to incriminate yourself under the Fifth Amendment to the U.S. Constitution. However, how you assert that right makes all the difference. First, simply remaining quiet does not invoke your right to remain silent. If you make statements at another time, they could end up as evidence against you in court.

Yes, you may ask for an attorney, but that doesn't properly invoke your rights either. Once police read you the Miranda rights, you must acknowledge that you understand them. Some officers or investigators count on the fact that you don't know how to assert your rights and that you may inadvertently waive them. Even if you don't say anything the first time police question you, they may use any answers you give thereafter against you.

Invoking your right to remain silent

So, now that you know that you must expressly invoke your right, how exactly do you make that happen? The United States Supreme Court has not indicated that you must speak certain words in order to meet the legal threshold. However, your statements must be clear. You may not be legally covered if you use any of these statements:

  • I plan to remain silent.
  • I may want to talk to an attorney.
  • Maybe I shouldn't say anything.
  • Maybe I should wait for my attorney.

These and other comments include vague language that a court could interpret as you failing to invoke your right to remain silent. Instead, your chances of meeting the legal standard may increase with the following statements:

  • I exercise my right to remain silent.
  • I will not say anything else until I see my attorney first.
  • I want to remain silent.
  • I only want to talk to my attorney.

These statements are affirmative and clearly state your intention not to incriminate yourself. The U.S. Supreme Court's only instruction concerns whether a reasonable law enforcement official would believe that you invoked your right. Even if you have done nothing wrong, invoking your right to remain silent may keep you from saying something that could be misconstrued later. If you speak to police any further, it could include reaffirmations of your desire not to talk to them and to stay silent.

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