3 scenarios in which remaining silent can actually be used against you in a criminal case.
If you are familiar with criminal law at all—even simply from shows like Law & Order—you no doubt have some understanding of the right to remain silent. Police typically advise suspects of this right immediately upon arrest or at least directly before questioning following an arrest via the Miranda Warning. This warning reads:
- You have the right to remain silent when questioned.
- Anything you say or do may be used against you in a court of law.
- You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future.
- If you cannot afford an attorney, one will be appointed for you before any questioning, if you wish.
- If you decide to answer any questions now, without an attorney present, you will still have the right to stop answering at any time until you talk to an attorney.
- Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney present?
However, it is important to realize that the “right to remain silent” as promised in the Miranda warning is subject to limitations. If you do not understand these limitations you may be at risk of actually harming your case by remaining silent. Here are 3 examples of such scenarios.
When You Are Not Yet in Custody
Based on a controversial Supreme Court ruling from June of 2013, it is possible for police to construe silence as evidence of guilt when a suspect has not yet been arrested, been Mirandized, or invoked his right to silence on his own. The case in question revolved around a suspect who was not yet in custody and was cooperating with police. He answered all of their questions and even produced his gun for police inspection. However, when the police asked if shell casings at the scene would match this gun, the suspect didn’t answer. The police continued asking different questions and these were answered. The court ruled that this silence could be admitted as evidence of the subject’s guilt. The suspect could have avoided this by clearly stating he wished to invoke his 5th amendment right to silence.
When You Have Not Yet Affirmed Your Rights
It is very important to understand that literally remaining silent does not guarantee your right to protection against self-incrimination. This is why the Miranda Warning ends with a question. You must declare whether or not you wish to invoke or waive your rights. If you do not invoke your rights, anything you do eventually say—even hours or days later—can be entered as evidence according to a 2010 Supreme Court decision.
When Silence Is Construed as Callousness
One final example of when silence can hurt your case comes from a 2014 California Supreme Court decision involving a suspect accused of causing a fatal car crash. The suspect was arrested and said nothing. Later, the prosecution argued that his failure to ask after the well-being of the individuals in the car he had hit showed a lack of remorse. The court allowed this evidence because the suspect had not officially invoked his right to silence and therefore his silence was not protected under the 5th amendment.
Your best move is to immediately state you wish to invoke your right to silence—even if this is not offered by police—and contact a criminal defense attorney before answering any questions.
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