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Does silence count as invoking the right to silence?

On Behalf of | Jul 9, 2021 | Criminal Justice |

Avid watchers of procedural dramas on television may have seen the police officers informing the suspect of their rights as they are being arrested. Known as the Miranda rights, they form an integral part of the criminal justice system. There are two basic Miranda rights: the right to remain silent and the right to an attorney while being questioned.

How do I invoke the right to remain silent?

Many do not realize that simply remaining silent does not invoke the right to silence. The full protections of the Miranda warnings do not come into existence unless the accused unequivocally invokes the right to silence. Otherwise, statements made during periods of silence can be used as evidence. On the other hand, even when someone does not properly invoke the right to silence, it must be demonstrated that he or she waived the right when admitting statements as evidence. However, courts do not look for explicit statements; it can be inferred if someone continues to make voluntary statements after being informed of one’s rights.

What does invoking the right to silence look like?

In order to avoid ambiguity, the accused should try to make a clear statement such as “I am exercising my right to remain silent” or express the wish to speak to one’s lawyer first. If the statement conveys a future intent to revoke the right to silence, courts may not consider it as an invocation. As soon as one invokes their right to remain silent or for an attorney, police interrogation should come to an end.

Though it can seem daunting when someone is facing criminal charges and going against the criminal justice system, it is important to remember that the accused also has some rights. To ensure one’s rights are protected during the arrest and trial, it might be helpful to speak to an experienced attorney.


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