Miranda Rights came about in 1966 from the case of Miranda v. Arizona. As a result of this case, rights established to help suspects not be forced to incriminate themselves were put into law. Specifically, as a result of this case, officers must now inform individuals they are arresting under suspicion of having committed a crime the following:
- They can remain silent
- Anything they choose to say can be used against them
- They do have the right to an attorney during questioning
- If they cannot afford one, the court will provide them one
- A suspect can stop answering questions at any time they choose. Answering one does not mean they have to answer all of them.
While we are all familiar with these rights for individuals being charged with a crime – they remain the rights of all US citizen regardless of if they are being arrested. There are different ways your rights are realized when you are in and out of legal custody. Your best chance is to hire a qualified attorney-at-law to represent you to know your rights.
What are Police obligated to do?
This is an important distinction – Police only have to remind you of your Miranda Rights if they are placing you under arrest and taking you into custody. As a result of this obligation, Police will often expressly let suspects know they are not under arrest and free to leave at any time when they question them so they are not “in custody” and do not have to advise them of their rights.
This is legal gray area and is one of the strongest reasons why you should always have your attorney present whenever you are being questioned by the police concerning a crime – especially when they state you aren’t under arrest as this may be a tactic to try to get you to incriminate yourself in a way that will be admissible in court. An experience trial attorney will be able to protect you from this. You always have your right to an attorney when being questioned by the police – even if they tell you that you don’t need one present because you’re not being charged.
If you want to remain silent, speak up
At the crux of the Miranda Rights issue is a recent, 2013 decision by the Supreme Court that held that the prosecution can, if certain circumstances are satisfied, refer to out-of-custody silence on the part of a suspect during police questioning as evidence of their guilt. The case in question was Salinas v. Texas, 133 S. Ct. 2174(2013). The court found that prosecution can use the out-of-custody silence of a suspect in the following circumstances:
- The silence happened outside of police custody
- The suspect voluntarily submitted to cooperate with the questioning where the silence occurred
- 5th Amendment Rights were not expressly invoked by the suspect
This means that the only way to protect yourself from not answering a question you do not want to answer in a voluntary, out-of-custody questioning, you must expressly state you are invoking your 5th amendment right to remain silent and not incriminate yourself in order for your silence to not be brought up in court later.
Additionally, in a 2010 Supreme Court case, the court ruled that even if you are in-custody, if you haven’t acknowledge and expressed your desire to invoke your right to remain silent, that silence can still be used against you. (Berghuis v. Thompkins, 560 U.S. 370 (2010).)
So in-custody, or out-of-custody, you must invoke your right to not incriminate yourself in order to receive your 5th amendment protection from self-incrimination. Now let’s talk about what you need to specifically say to guarantee you have legally invoked your 5th amendment right to not incriminate yourself:
What to say to invoke your right to silence
Simply put, there is no better way to prepare for an out-of-custody questioning or in-custody interrogation with police when a suspect for a crime than to have your attorney present. This is the best way to ensure you have the full legal protection the law allows.
When invoking your 5th amendment rights, you need to be clear about it to ensure you’ve correctly given yourself adequate legal protection during your trial. Make sure to do the following:
- Invoke your right to not incriminate yourself by mentioning the 5th amendment specifically
- Invoke your right to have an attorney present as well who can provide in-the-moment advice about the best way to proceed with the questioning in order to protect yourself in the event a case is brought against you.
Keep in mind that each state is slightly different. Though the Supreme Court has the ultimate authority, state courts have some interpretive power as well which means you should research the best way to invoke your 5th amendment rights in an out-of-custody setting in your state specifically. For help with that, the ACLU has put together a helpful discussion of what you should say and do when you are stopped by law enforcement. In some states, for example, you are required to give your name.
Still have questions?
Please call us for a free appointment with Miami business attorney Yoel Molina in our Miami office at 305-548-5020.