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Understanding Your Right to Remain Silent


Shut Up! You Have the Right to Remain Silent. Do It ― Remain Silent.

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”

Sound familiar? This is known as your Miranda Warning. However, you do not have to be read your Miranda Warning to remain silent — you are afforded this right whether or not the police give a Miranda Warning. You are responsible for understanding and exercising your right to remain silent, as the police are notorious for failing to inform people of this important right.

The bottom line is you can remain silent whenever the police attempt to question you in most cases (we discuss exceptions to the rule below).

A common misconception is that you only have the right to remain silent when you’re arrested, but that could not be farther from the truth. Unfortunately, far too many people do not exercise their right to remain silent for this reason. But know that this is one of the most fundamental and critical rights you have, so it is in your best interests to take advantage and remain silent when the police attempt to question you once you’re detained or arrested.

To give you a better idea of the two, an arrest is defined as using legal authority to deprive a person of their freedom of movement, such as by restraining them with handcuffs and taking them to the police station. On the other hand, you can be detained for a short period of time if the police believe you have information about a crime or suspect you of committing an offense. Detention and arrest are both forms of police custody, which is defined as being under state control, limited in your liberties, and dependent upon police officers to meet their needs.

As you can see, you have the right to remain silent whether you’re casually being questioned about a crime scene or placed in handcuffs and going to the police station.

Are There Any Exceptions to the Miranda Rights?

Yes, there are four exceptions to the Miranda Rights and the general right to remain silent. These exceptions apply in situations where the police are not attempting to elicit an incriminating response. As such, exceptions to your right to remain silent include:

Public safety: If the questioning is necessary for public safety when an imminent danger is present, then the police may question you without reading your Miranda Rights. For example, let’s say a suspected terrorist is taken into custody and invokes their right to remain silent. The police want to know where and when the attack will occur because it’s an imminent danger to public safety, so they may continue questioning the suspect, whose answers may be admissible in court despite the fact that they invoked their right to remain silent.

Traffic stops: If you got pulled over in your car and the police ask for your license, registration, and proof of insurance, you must comply and provide it. You do not have to provide any other information besides those documents, though.Ultimately, both you and your passengers have the right to remain silent at traffic stops.

Standard booking questions: If you were arrested and taken into custody, you will be booked or processed. The booking process is meant to create an official arrest record for you. Accordingly, the police will ask questions about where you live, your date of birth, your name, your gender, your occupation, and similar questions that you must answer. These questions are for booking purposes rather than interrogation purposes, therefore, this is an exception to the rule.

Jailhouse informant: The police often use inmates who “snitch” to their advantage. A jailhouse informant is an inmate who acts on behalf of the police to “trick” a suspect into giving incriminating evidence that may be used in court. Jailhouse informants technically are not police officers, which is why they do not have to read a suspect’s Miranda rights when asking about their alleged crime (doing so would also be counterproductive). That being said, suspects in these situations do not get to exercise their right to remain silent because they are not getting questioned by a police officer and ultimately, unaware that they are being tricked into incriminating themselves.

How Do I Invoke My Right to Remain Silent?

Before you assert your right to remain silent, you should find out whether the police officer has a reason to detain you. After all, they should have a good reason to stop you from going about your day. If a police officer stops you and asks you questions, stay calm, don’t argue, and keep your hands in plain view. Respectfully ask, “Am I free to leave?” If you are free to go but decide to stay and voluntarily participate, anything you say can be used against you.

We want to emphasize that you cannot be punished for refusing to answer questions. If you wish to exercise your right to remain silent, here are some ways you can do so:

  • Say, “I want to remain silent.”
  • Say, “I wish to exercise my right to remain silent.”
  • Say, “I am exercising my right to remain silent.”

Do not be ambiguous by saying things like, “I think I want to remain silent” or “I plan to exercise my right to remain silent.” Be polite but firm. Invoke your right to remain silent loud and clear, and multiple times if circumstances call for it. This is especially important if the police persistently question you regardless of your desire to remain silent. Believe it or not, the police are very good at making people feel like they aren’t in trouble, saying things like, “If you cooperate, things will be better for you,” or “We just want to hear your side.” These are just tricks and lies intended to make you speak up.

Once you invoke your right to remain silent, follow through. The moment you speak to an officer is the moment things can get worse for you. For example, if you assert your right to remain silent but casually chat with the officer afterward, they could argue that you revoked your right and were simply engaging in a friendly conversation.

Limits to Your Fifth Amendment Right to Remain Silent

A common misconception is that a person can “plead the Fifth” whenever they are being questioned by the police. This is not true. The Fifth Amendment guarantees the right to a grand jury, prohibits “double jeopardy” (prosecuting someone twice for the same crime), requires due process of the law, and protects against self-incrimination, among other rights.

So, when it comes to questioning, when can you invoke the Fifth Amendment? In most cases, only defendants and witnesses in a criminal trial may plead the fifth. Criminal defendants who do not want to testify can plead the fifth, and witnesses in a criminal trial can plead the fifth if they believe the questions will produce self-incriminating answers. The difference is that a defendant who asserts their right against self-incrimination cannot pick and choose which questions to answer without waiving their right to testify altogether, unlike witnesses, who are allowed to plead the fifth to some questions but not others.

You Have the Right to an Attorney. Exercise This Right Today!

Besides the right to remain silent, another key element of your Miranda Rights is the right to an attorney. Hiring a lawyer from the moment you are arrested can make a world of difference in your case, as they can guide you through the process, inform you of your rights, and work to minimize the negative impacts of your case at each stage of the process.

At Guadagno Law, PLLC, our lawyer is a former prosecutor who knows how both sides of the system operate. With his invaluable experience and insights, Albert Guadagno is a trusted advocate for good people in bad situations. To schedule your free consultation, contact our firm online or at (206) 895-6800 today. We’re available 24/7!

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