Even if you know very little else about the American criminal justice system, you probably know that you have Fourth Amendment protections against self-incrimination, including the right to remain silent when questioned by the authorities – without having that held against you later.
Just how absolute is that right, however? Is simply closing your mouth and refusing to answer any questions enough to protect you? The answer may surprise you.
You need to speak up if you intend to remain silent
First of all, most people don’t realize that they don’t have to wait on an officer to read them their Miranda Warning and remind them of their rights before they invoke them. Second, even fewer people realize that the police only have to give you that reminder of your rights when you are both in police custody and under interrogation.
That means that if an investigator comes to your home or office and starts asking you probing questions, they don’t have to (and will not) give you a Miranda Warning. It’s to their advantage if you don’t realize that you’re potentially incriminating yourself when you talk. Similarly, an investigator can invite you to their office, stick you in an interrogation room and fire questions at you at will – as long as they make it clear that you’re not under arrest.
Once upon a time, if you had refused to answer their questions in all those situations, that couldn’t have been used later by prosecutors to suggest at trial that you were being evasive because you were guilty. All that changed in 2013, when the U.S. Supreme Court decided that there are situations where prosecutors can point to a suspect’s silence as evidence of guilt.
So, what should you do to protect yourself? Regardless of the reason you find yourself under police scrutiny, the most prudent thing you can do is speak up and say, “I’m invoking my right to remain silent. I do not wish to answer any questions without my attorney.” At that point, your affirmative reliance on your Constitutional rights makes your silence sacrosanct, and it can no longer be used against you.
It’s scary to find yourself in a situation where the authorities have gotten involved. If that happens, make sure you understand your right to a proactive defense.
