Anyone who has spent any time in the United States has heard of the “right to remain silent.” Of all the rights guaranteed to those of us living in the U.S., that right is the one most frequently mentioned. Knowing that the right to remain silent exists, however, is not the same as understanding what it really means, when it applies, and what the consequences are if it is violated. To help in that regard, a Nebraska criminal defense attorney explains more about the right to remain silent.
Your Constitutional 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). The U.S. Constitution, however, remains the highest legal authority in the land which means that while 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 enumerated 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)
Real World Application of the Right to Remain
Your right to remain silent is relatively simple to explain because, unlike some of your other rights, it is self-explanatory. With the exception of the need to answer questions regarding your identity, your right to remain silent means just what it sounds like. During an encounter with a law enforcement officer, you do not have to answer questions nor speak to the police if you do not want to do so. Moreover, you can invoke, or waive, your 5th Amendment right at any point during an investigation or trial. 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. Conversely, if you originally exercised your right to remain silent, but later decide it is in your best interest to cooperate, you may waive your right and answer questions at that time. If a law enforcement officer violates your right to remain silent, anything you said following that violation will likely be inadmissible at a later trial as a result of that violation.
The Police Never Read Me My Rights So the Case Has to Be Thrown Out …Right?
One of the most common things criminal defense attorneys hear from clients is “The police never read me my rights so the case has to be thrown out, right?” Actually, it doesn’t work quite like that. 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. So if a police officer knocks on your door and asks to talk to you, no Miranda warning is required. You do, however, still have a right to remain silent; however, the police officer is under no obligation to advise you of that right. By the same token, if that officer decides to arrest you at some point, but has no intention of questioning you, there is also no requirement that you be advised of your Miranda rights. Only when you are in custody and being questioned must a law enforcement officer advise you of your Miranda rights. If a law enforcement officer does question you while you are in custody without first advising you of your Miranda rights, anything you say in response to that questioning would likely be inadmissible at trial because your right to remain silent was violated by the police officer.
Contact a Nebraska Criminal Defense Attorney at Petersen Law Office
If you have been charged with a criminal offense in the State of Nebraska, do not hesitate to consult with an experienced criminal defense lawyer as soon as possible to ensure that your rights are protected. 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)
- How Long Could I Go to Jail for If Convicted of Trafficking Drugs? - Friday, January 18, 2019
- What Must the State Prove to Convict Me of Conspiracy? - Friday, January 11, 2019
- What Is Constructive Possession? - Thursday, January 3, 2019