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The Right to Remain Silent: What it is and How to Use it

All Americans have certain rights protected under the U.S. Constitution. These rights apply to everyone, regardless of what state they live in. States also have constitutions. In some instances, those state constitutions even offer added protections. One of the most common protections people are aware of is the “right to remain silent.” This protection is not actually found anywhere in the U.S. Constitution nor in any state’s constitution. Rather, it is a concept that was created by the Supreme Court in the case, Miranda v. ArizonaAlthough very popular, in large part due to television legal police dramas, this is one of the most misunderstood concepts around.

What are your constitutional rights when arrested?

You have many rights when arrested. Among them is the right to remain silent. However, this is not mentioned in the Constitution either. Instead, the Fifth Amendment states a list of things a person cannot be required to do or endure. In part, it reads that no person “shall be compelled in any criminal case to be a witness against himself…” Likewise, under the Sixth Amendment, one has a right to the “assistance of counsel in his defense.” The latter has been interpreted by the Supreme Court to mean all criminal suspects have a right to not incriminate themselves and to have an attorney assist them. This right begins the moment they are arrested.

What did Miranda v. Arizona do to change the law?

Prior to this 1966 case, officers could arrest a suspect and begin interrogating them without an attorney present. Sure, the person could always ask for an attorney, but not every defendant was aware they had the right to one. Consider someone who may not be a U.S. citizen or who is new to our country and may not know these rules. This made people much more susceptible to interrogation tactics, because they had no counsel to help them understand their rights.

In the Miranda case, the court determined that anything the defendant says can be used against him at trial, but only if it can be shown that he was warned of the consequences and his right to not incriminate himself. Later cases broadened the focus to require the defendant to be notified of his right to have an attorney prior to and during interrogations and that he understood the rights. He must acknowledge understanding and voluntarily waive them before any statement can be held against him. Of course, what constitutes “voluntarily waived” involves a whole body of case law.

What to do if arrested, and how to use your Miranda rights

The police will invariably read the rights to you. They are not technically required to, but if they do not, they are giving up any evidence you provide. You may take advantage of these rights by simply not talking. Nothing the police say or do can make you waive your right. Do not try to outsmart the police. Do not be rude, disrespectful or defiant in any way. Instead, you should immediately have a close friend or relative contact a skilled criminal defense lawyer. Further, the moment you say you want to speak with an attorney, all interrogations must end. The police may not ask you anything else about your activities, suspected crimes, and so forth. If they do, they violate your rights. Do not be misled; contacting an attorney is almost always better than dealing with the police directly.

A police officer may tell you once you call a lawyer the deal is off the table. Chances are good, if there case is truly solid, they would not be inclined to make a deal. Deals rarely get worse after a skilled lawyer is involved. Remember, however, no lawyer can give you an absolute guarantee, because there are too many circumstances out of their control. But if you or someone you know has been arrested, the best thing you can do is call a lawyer right away.  In Leesburg, Manassas and surrounding areas of northern Virginia, Simms Showers, LLP is available to explain your rights today.

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