Almost everyone has heard of the “right to remain silent.” Every law enforcement drama on television has shown a police officer informing a suspect of his right to remain silent at least once. Given that the public is, for the most part, aware of the existence of the right to remain silent, you might assume it is asserted and relied on regularly by people who come into contact with law enforcement officers. You would be incorrect. Despite how familiar people are with the concept of the right to remain silent, it is frequently not relied on when it should be. An Omaha drug crime attorney at Petersen Law Office shed some light on why asserting your right to remain silent can be so difficult.
The Origin of Your Right to Remain Silent
In the United States, we operate under a federalist form of government. That means we have a strong central government (the federal government) that is prevented from becoming too strong by a number of individual semi-autonomous governments (the state governments). It also means that the U.S. Constitution remains the highest legal authority in the land. Although individual states may make their own laws, a law cannot violate or impinge on your Constitutional rights. Your right to remain silent is found in the broader right against self-incrimination found in the Fifth Amendment to the Constitution, which reads as follows:
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” (Emphasis added)
Your Right to Remain Silent in Plain Terms
Your right to remain silent is fairly straight-forward; however, knowing when and how to assert it can be difficult for the average person. Beyond providing a law enforcement officer with your identity, your right to remain silent means just that – you do not have to answer questions nor speak to the police if you do not want to do so. Furthermore, you can invoke your 5th Amendment right at any time. For example, if you originally agree to answer questions from a police officer but soon begin to feel uncomfortable doing so, you may invoke your right to remain silent at that time. If you also request an attorney at that time, a police officer is required to stop questioning you until you have an attorney present.
Don’t The Police Have to Advise Me of My Right to Remain Silent?
Yes, under certain circumstances a police officer is required to inform you of your right to remain silent. There is much confusion, however, in the applicability of the Miranda warnings requirement. Named for the case that established the need for a law enforcement officer to provide the warnings, your Miranda rights only attach when you are in custody. In other words, the police are only required to read you your rights if you are considered to be in custody, and even then, only if they plan to question you. If, for example, the police stop you and ask if they can “talk” to you, no Miranda warning is required. Your right to remain silent still exists; however, the police officer is not required to tell you it exists at that point. Furthermore, if you are clearly under arrest, but the police have no intention of questioning you, Miranda warnings are not required. Finally, if you voluntarily talk to the police and/or answer questions after they advised you of your right to remain silent, you may have waived your right to remain silent. Your right to remain silent is yours to assert or ignore. For that right to protect you, however, you need to be aware that it exists and assert it when necessary.
Contact an Omaha Drug Crime Lawyer at Petersen Law Office
If you have been charged with a criminal offense in Nebraska, consult with an experienced Omaha drug crime lawyer at Petersen Law Office as soon as possible to discuss your legal options. In Nebraska contact Petersen Criminal Defense Law 24 hours a day at 402-509-8070 to discuss your case.
Latest posts by Tom Petersen (see all)
- Asserting Your Right to Remain Silent - Wednesday, November 21, 2018
- How to Prepare for Your Consultation with a Defense Lawyer - Thursday, November 15, 2018
- Miranda Rights — When Must They Be Given and What Happens If They Weren’t - Thursday, November 8, 2018