The Fourth and Fifth Amendments cont. — Right to remain silent and right to an attorney
Part of Kheiro Magazine’s “Constitutions Series” introducing the U.S. Constitution
By Stuart Kluft, J.D.
Once you hear a law enforcement officer recite your Miranda rights, what should you do? As explained in our last column, you must properly assert your rights and then maintain them by refusing to speak to the police without your attorney present.
In today’s issue we explain in more detail how to effectively assert your Miranda rights, and describe the differences between the right to remain silent and the right to speak to an attorney.
How to Properly Assert Your Rights?
To enjoy the benefits of your Miranda rights you must affirmatively assert them.
Right to an attorney
In order to affirmatively assert your right to an attorney you must clearly and definitively communicate a statement equivalent to, “I want to speak to a lawyer before I am questioned” to law enforcement. Making unsure statements such as, “I think I might want to speak to a lawyer,” or, “Maybe I should speak to a lawyer,” will not suffice. The Supreme Court has held that hesitation and debating whether you wish to assert your right does NOT count as affirmatively asserting your Miranda rights. Therefore, those statements will not legally bar a law enforcement officer from continuing to interrogate you.
For example, in scenario 1 Joe is a suspect of a crime and wants to assert his right to an attorney. Joe tells the police, “I think I should talk to my lawyer.” What Joe has said leaves open the possibility that he might want to assert his right in the future, but he hasn’t done so yet. Because Joe’s statement was not an affirmative assertion of his right, the police can continue to question Joe and get a statement from him they will use in his trial against him.
In scenario 2, the same facts apply but Joe says, “I want to speak to my lawyer before any further questioning.” The questioning must stop and cannot continue until Joe has a chance to consult with a lawyer. If the police continue to question Joe prior to letting him speak to an attorney, any statements collected are subject to be thrown out for violating Joe’s Fifth Amendment right against self incrimination.
Right to remain silent
In order to affirmatively assert your right to remain silent you must clearly and definitively communicate to law enforcement that you are asserting that right, such as making the statement, “I am asserting my right to remain silent.” Simply refusing to talk is not enough to assert your right remain silent!
Similar to your right to an attorney, making unsure statements such as, “I don’t think I want to talk,” or, “Maybe I shouldn’t talk,” are not enough to assert your right in certain contexts. It is always safer to make an affirmative statement such as, “I am asserting my right to remain silent.”
For example, consider Joe in Scenario 3; once again, he is suspected of having committed a crime and is being questioned by police. Joe has decided in his mind that he will take advantage of his right to remain silent, but he does not affirmatively assert it to the police. Joe sits there quietly thinking he’s asserting his right to remain silent while the police ask him a series of questions … for 8 hours straight. The entire time Joe sits there stone faced and quiet. However, on the eighth hour Joe cracks and makes a statement. Nothing the police did here was illegal or in violation of Joe’s Fifth Amendment rights, because Joe never actually asserted his rights.
In scenario 4, Joe has a conversation with the police but then says, “I don’t feel comfortable, maybe I shouldn’t speak with you guys anymore.” As you should know by now, Joe’s statement is not enough to assert his right to remain silent. Therefore, the police continue to question Joe, leading to a statement that places Joe at the scene of the crime and will be used against him at trial.
In scenario 5, Joe states to the arresting officer — after having his Miranda rights dictated to him — “I am asserting my right to remain silent.” The questioning must stop at this time. Any additional questions and statements made after Joe affirmatively asserted his right are subject to be thrown out at trial for violating Joe’s Fifth Amendment rights.
Right to an attorney > Right to remain silent
Your right to speak to an attorney is stronger than your right to remain silent for two main reasons. First, when you assert your right to an attorney, you are asserting both rights! This is because when you assert your right to an attorney you stop all interrogations (right to silence), and you get the benefit of halting those interrogations until you speak to an attorney. When you merely assert your right to remain silent you merely stop that single interrogation and are not granted the ability to speak to an attorney prior to having charges filed against you — the Sixth Amendment grants the right to an attorney once adversarial proceedings begin.
Second, asserting your right to an attorney potentially gives you a longer period of time free from law enforcement interrogation. This is because you stop all questioning — that may potentially illicit an incriminating statement— until you speak to an attorney. However, the right to remain silent only stops that particular interrogation for a reasonable amount of time, in some cases questioning can resume that same day. The time periods are dependent on your state, county and city’s laws. The right to an attorney, however, stops all interrogations until you confer with your lawyer UNLESS the suspect initiates the conversation.
When is the best time to assert your rights?
The best time to assert your Miranda rights are IMMEDIATELY after you are dictated them.
The sooner the better! Anything you volunteer or tell a law enforcement officer before asserting your rights can and will be used against you in court. So don’t wait! Assert your rights as soon as you can when being questioned by law enforcement
One final key point to remember is once you assert your rights, make sure to not waive them again! If you start voluntarily speaking — even after asserting your rights — you will have waived both of your Miranda rights. However, you can always decide to re-assert your right to remain silent and to an attorney again at any time. Simply state that you are asserting your rights, and then stop talking.
Make sure to check back with Kheiro Magazine to better know your rights!
NOTE: The views expressed here do not represent the opinion, statements, or positions of Kheiro Magazine. This information is not legal advice, nor is it intended to be legal advice; it is solely designed to provide helpful information on the subjects discussed. Kheiro Magazine has made every attempt to ensure the accuracy of the information provided herein, however it is not a substitute for actual legal advice. If you find yourself in legal trouble, contact an attorney immediately. Further, readers should be aware that the law changes and what is contained here today might not be true tomorrow. As such, these statements are only held out to be accurate as of the date of publishing.
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