How to Invoke Your Right to Remain Silent
If you decide to speak to law enforcement about the facts of your case without an attorney being present, then you are waiving important rights. Those rights include your Fifth Amendment rights against self-incrimination and your Sixth Amendment right to counsel.
Don’t waive important constitutional rights until AFTER you have spoken to an attorney. Your attorney is often in the best position to explain your side of the story to the law enforcement officer. You can invoke your rights by saying:
“I’m taking the 5th and 6th amendment. I will remain silent until after I speak with my attorney.”
Then remain silent. If you are lawfully detained, you can tell the officer your name, address, and date of birth without waiving your rights.
People sometimes ask: “Won’t invoking my right to remain silent make me look guilty.” Maybe, but if your case goes to trial, the jury will never be told that you invoked your rights. In other words, the fact that you remained silent cannot be used against you at trial.
If you hire a criminal defense attorney, the attorney can send a notice to the investigating officer that you are invoking your rights under the 5th and 6th amendments. This notice prevents the officers from asking you any questions about the accusations or coming to your home to interrogate you.
In the event the officer does intend to make an arrest, your attorney can help you surrender under terms that may speed up your release and save you money. We can contact the prosecutor to discuss lowering the bond amount.
At Sammis Law Firm, our criminal justice attorneys also handle other critical details that might minimize the embarrassment, stress, and expense that might otherwise accompany the arrest.
Rights Guaranteed in the Miranda Warning
The amendment that gives you the right to remain silent and not incriminate yourself during all stages of a criminal investigation or prosecution is the Fifth (5th) Amendment.
The amendment that gives you the right to the assistance of counsel at all stages of a criminal investigation or prosecution is the Sixth (6th) Amendment. You can invoke your right to counsel by saying, “I want to speak to an attorney. I am not answering any other questions until after I speak to an attorney.”
Your 5th amendment right to remain silent and your 6th amendment right to counsel are both explained in the Miranda rights warning read by officers before a custodial interrogation.
What Does the Fifth Amendment Say?
The Fifth Amendment of the United States Constitution provides:
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.
What does the 5th Amendment mean in simple terms?
The simplest way to understand the right to remain silent can be found in various versions of the Miranda including:
You are under arrest for the crime of _________ .
You have the right to remain silent. Any statement you make may be used for or against you in a court of law.
You have the right to an attorney.
If you cannot afford an attorney, one will be appointed for you.
Do you understand each of these rights that I have explained?
With these rights in mind, would you like to answer questions?
Wikipedia on the Right to silence and Miranda Warnings – Visit Wikipedia to learn more about the right to remain silent in the United States and across the world. The article also explains the right to remain silent in the Uniform Code of Military Justice that existed prior to the ruling in Miranda v. Arizona. Specifically, Article 31, UCMJ, provides protections against coercive self-incrimination.
This article was last updated on Friday, January 7, 2022.