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A person stands with their hands in handcuffs behind them

"You have the right to remain silent. Anything you say can and will be used against you in a court of law." This transaction between law officials and a citizen is a frequent occurrence, as they must state your basic rights protected in the Fifth Amendment in most arrest cases. Why? Police officers are required by law to notify you of your Miranda rights, which is a protection against self-incrimination.

However, the police are not required to read you your Miranda rights unless you are in custody.

Miranda warnings came into being because of the 1966 decision in the Supreme Court case of Miranda v. Arizona, which reinvestigated a case in which the defendant was charged because he confessed without first being informed of his Sixth Amendment right to an attorney and of his right, according to the Fifth Amendment, to refuse “to be a witness against himself.”

But the specific rules of Miranda rights were challenged years later.

Following the much talked about case of Salinas v. Texas that started in 1992, the Supreme Court recently ruled that a person's silence can in fact be held against them pre-Miranda rights, meaning before the officer read off your Miranda rights.

Salinas was suspected of a murder committed in 1992, where he was brought in for informal questioning, without having his rights advised to him. Having answered the detective's answers, he fell silent when asked if the bullet shells of his shotgun would match the shells found at the crime scene. Later, his silence on the question was used to in court and suggested he was guilty of committing the murder.

Because of his failure to inform questioners of his choice to remain silent and without having his Miranda rights read to him, his silence was used as substantial evidence to believe that was responsible for killing two people.

How & When to Remain Silent

To avoid having your silence used as evidence in court, two things need to be present:

  • A police officer must read you your Miranda rights
  • You must state that you are invoking your right to remain silent

If you are being questioned for any reason and you wish to not answer, it is important to express your desire to remain silent by stating something along the lines of "I wish to invoke my right to remain silent" or "I wish to consult with a lawyer."

When in custody and after Miranda rights have been read, if the suspect simply remains silent, they have not actually invoked the right to remain silent. In other words, you need to confirm that you wish to remain silent in order to do so.

To receive more information about your right to remain silent, contact Daniel D. Hajji, Attorney at Law to speak with a knowledgeable Oakland County criminal defense lawyer.