Where Is Your Right to Remain Silent Found?
You likely know that your right to remain silent stems from the U.S. Constitution. However, you might not know that nowhere in the Constitution does it actually say you have a right to remain silent. Most of the rights with which you are likely familiar stem from the first ten amendments to the U.S. Constitution, collectively referred to as the “Bill of Rights.” The Fifth Amendment is where the right to remain silent derives from. The 5th Amendment reads:
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 offense 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)
As you can see, the 5th Amendment does not specifically indicate you have a right to remain silent. Instead, that right has been interpreted from the section that reads: “nor shall be compelled in any criminal case to be a witness against himself.”
Why Are They Called “Miranda” Rights?
You have likely heard the rights read to a suspect referred to as “Miranda Rights.” They are called Miranda rights because of the noted case of Miranda v. Arizona, wherein the U.S. Supreme Court originally held that police officers were required to advise someone under arrest of his/her Constitutional rights.
When Does Your Right to Remain Silent Apply?
This is one of the biggest misconceptions surrounding your Miranda rights in general. The police do not need to read you your rights every time they come into contact with you. Although your right to remain silent applies at all times, the police are only required to advise you of that right if you are in custody. Moreover, they only need to read you your rights if they plan to question you. For example, if a police officer simply walks up to you and starts talking to you, and you choose to answer, your rights have not been violated because you were not in custody at the time. Likewise, if you are in custody, and you start talking without the police actually asking you any questions, your rights have not been violated, even if they never read you your rights. To summarize, the police are only required to advise you of your right to remain silent (and your other rights) if: (1) you are in custody, and (2) they plan to ask you questions.
When and How Can You Assert Your Right to Remain Silent?
This one is simple. Anytime. You can assert your right to remain silent at any time, even after you started answering questions if you decide you wish to stop. Although there are not “magic words” required, it is best to be clear and say something along the lines of “I wish to assert my right to remain silent. I do not want to answer any (more) questions without an attorney present.” Note: A suspect’s silence does not have to be interpreted as the suspect asserting his/her right to remain silent. Moreover, although asserting your right to remain silent cannot be used against you in court, you must actively assert that right. Your silence could potentially be used against you if you do not speak up and specifically say you wish to invoke your right to remain silent.
Contact Us
If you have been charged with a criminal offense in the State of Nebraska, it is certainly in your best interest to consult with an experienced Nebraska criminal defense attorney right away. In Nebraska, contact Petersen Criminal Defense Law 24 hours a day at 402-509-8070 to discuss your case with an experienced criminal defense attorney.
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