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Old Pueblo Legal Observer

“You have the right to remain silent”…but you better say you are remaining silent.

Posted by Adam Page | Aug 21, 2015 | 0 Comments

 “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 speak with an attorney and to have an attorney present with you while you are being questioned.  If you cannot afford to hire an attorney, one will be appointed to represent you before any questioning if you choose.  Do you understand these rights?”  These magic words are spoken every night on a cop or lawyer T.V. dramas.  The “Miranda Rights” have become part of the American lexicon.  But ever since the landmark case of Miranda v. Arizona what they mean and how a person invokes their rights has become increasingly confusing. 

It never fails that most people who have been read their rights waive them in some manner and agree to answer questions posed by police officers.  It also never fails that every attorney who represents the person who did answer these questions cringes when they are informed they spoke with the police and waived their rights.  Rest assured, whatever words are spoken will certainly be used against them.  But what if no words are spoken?  What if a police officer reads a person their “Miranda Rights” and that person makes no statements?  Is not speaking the same as invoking your right to remain silent?  The answer quite simply is no. 

The United States Supreme Court made this abundantly clear in Salinas v. Texas, 133 S.Ct. 2174 (2013).  The Supreme Court stated that to invoke one's right to remain silent it must be “clear and unambiguous.”  The Supreme Court further stated that silence alone is “insolubly ambiguous.”  However, in Salinas, the Supreme Court went one step further holding that not only did the Defendant fail to invoke his right to remain silent but that his silence could be used against him in court as an admission of guilt. 

What does this all mean?  Simply put, if a person is read their “Miranda Rights” they must explicitly say they are invoking their right to remain silent because not saying anything can be used as evidence of guilt. 

With all that, the best thing to do is to just say, “I want an attorney.” 

About the Author

Adam Page

Mr. Page primarily practices in the areas of personal injury and criminal defense.


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