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When and How to Invoke Your Right to Remain Silent


Most everyone has seen a television show which depicts a suspect being “Mirandized,” yet many people do not have a clear understanding of exactly what it means to invoke your right to remain silent—and how to accomplish it.

Your right to remain silent comes from the Fifth Amendment which ensures no person can be compelled to be a witness against him or herself. You must be in custody and under interrogation in order for the police to have an obligation to provide your Miranda warnings.

Custodial Interrogation, and How It Affects Your Miranda Rights

If you are not under a “custodial interrogation,” then you don’t have to be Mirandized by the police. In other words, if you are able to get up and walk out of the interrogation room, then you are not in custody. If, on the other hand, you have been physically deprived of your freedom to take action, if you have been told you cannot leave, if there is probable cause to arrest you, or if the police have created a situation which would lead you to believe your freedom has been restricted, then you are probably under custodial interrogation. In simpler terms, if the police officer has made you feel as though you cannot leave, then you should have been read your Miranda rights.

Your Right to Remain Silent in an Initial Traffic Stop

Your initial stop does not rise to the level of being in police custody, however during a traffic stop or other encounter with the police, you still have the right to remain silent, even though you do not have to be Mirandized. You do have to provide your driver’s license, registration and proof of insurance, but after you have provided those items, you can politely decline to answer any questions.

Investigative Detention vs. Arrest

Most of us would assume if we were handcuffed and placed in the back of a police cruiser, we were under arrest, In fact, while this would usually be true, it may not always be true. Under certain circumstances, you could be placed in a police car for the officer’s safety, yet not be under arrest, and under other circumstances, you may not have been handcuffed, but could still be under arrest. In other words, it can be a fuzzy area between investigative detention and arrest. The final word on whether you are under arrest, lies in whether your freedom of action has been curtailed in any significant manner.

Understanding Your Right to Remain Silent

If you have determined you are under custodial interrogation, then the officer has an obligation to Mirandize you. If you are read your Miranda rights, yet continue talking, anything you say will absolutely be used against you. Oddly enough, in order to exercise your right to remain silent, you actually have to speak. And, you have to do so in a clear, unambiguous manner. Merely refusing to speak is not sufficient—in other words, you can’t be silent if you want to be silent. You must state that you wish to remain silent verbally and unambiguously, or you have waived your right to remain silent. There are a number of ways to invoke your right to remain silent, including:

  1. “I am asserting my Miranda Rights.”
  2. “I do not want to talk to you until I have spoken with my attorney.”
  3. “I refuse to answer your questions and want to contact an attorney.”
  4. “I am invoking my right against self-incrimination.”

However you choose to assert your right to remain silent, it must be done in such a clear manner that the police cannot purposefully misinterpret it, and, if you begin speaking or answering questions after you have asserted your right to remain silent, you may have forfeited those rights. So—invoke your right to remain silent as soon as possible, then take it seriously, and remain silent until you have contacted an experienced criminal defense attorney.

Contact Our Jackson Criminal Defense Lawyers

If you have been charged with a crime in Jackson, Hattiesburg, Meridian, or anywhere in the State of Mississippi, the best thing you can do is to contact an experienced Mississippi criminal defense attorney who will protect your rights to a fair trial and safeguard your future.

At Coxwell & Associates, PLLC, our attorneys believe that everyone is innocent until proven guilty and we work tirelessly to ensure that your rights are protected throughout the process. Contact Coxwell & Associates today at (601) 265-7766 or 1-877-231-1600.

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Disclaimer: This blog is intended as general information purposes only, and is not a substitute for legal advice. Anyone with a legal problem should consult a lawyer immediately.