The right to remain silent, which is in the Fifth Amendment, is one of the most important individual rights in the Bill of Rights. If you are arrested, the more you say, the more evidence the state has against you. It really is that simple. Frequently, officers try to bully defendants in these cases. They say things like, “If you don’t talk to us, we’ll charge you with this crime.” But that’s probably going to happen whether you talk or not.

The right to remain silent also includes the right to refuse cooperation, at least to some extent. For example, drivers need not roll down their windows at DUI checkpoints. They must only comply with basic commands, like presenting documents for inspection.

The Fifth Amendment is so important because a criminal attorney Rochester, NY, routinely argues that there is a lack of evidence. The state must prove guilt beyond a reasonable doubt. The less evidence prosecutors have, the easier it is to successfully resolve a criminal case.

Origins of the Right to Remain Silent

Widespread use of ex officio mero oaths prompted many English dissidents, especially religious dissidents, to flee England and come to America. EOM oaths were basically confessions of guilt. Usually, criminal suspects were forced to swear these oaths before they knew what charges they were facing. Suspects who did not swear EOM oaths were presumed guilty.

In America, the Puritans were the first group to guarantee the right to remain silent. Founding Father James Madison picked up on this idea. He included it in what later became the Fifth Amendment to the Constitution.

Custodial Interrogation and Criminal Attorney Rochester, NY

As soon as custodial interrogation begins, suspects have the right to remain silent. Many people believe that “custodial interrogation” means they are handcuffed in police interview rooms. After all, that’s the way it looks on TV. But to a criminal attorney Rochester, NY, this phrase is much broader. As a result, suspects can invoke their right to remain silent much sooner.

In general, people are in custody when they do not feel free to leave. In a typical traffic stop, most people do not feel free to leave as soon as they see flashing squad car lights in their rearview mirrors. Sometimes, they may feel confined even earlier. For example, when officers suddenly change directions and follow suspects closely, most people do not feel like they can leave of their own free will.

Likewise, interrogation does not mean asking questions about alleged criminal activity. Police officers know how to subtly extract information with seemingly innocuous questions, like “where are you coming from?” So, as a general rule, as soon as police officers open their mouths, you should probably close yours.

How Do I Invoke My Right to Remain Silent?

For many years, people invoked their right to remain silent simply by remaining silent. Then, in 2010, a sharply-divided Supreme Court handed down a decision in Berghuis v. Thompkins. The Justices ruled that suspects must affirmatively invoke their right to remain silent. Otherwise, they waive it. Some examples of an affirmative waiver include:

  • I am exercising my right to remain silent,
  • I want to talk to a lawyer,
  • I’m exercising my Miranda/Constitutional rights.

Some variation is acceptable, but the waiver must clearly indicate that the suspect is exercising Constitutional rights. Otherwise, police officers may later claim they did not know that’s what the defendant was doing, and a Monroe County judge might accept that argument.

On a related note, police officers often take turns interrogating suspects. This approach is sometimes known as the good cop, bad cop. It’s important to assert your Fifth Amendment privileges when a new interrogator appears. Don’t assume the officer knows about a previous assertion.

Contact a Dedicated Lawyer

Defendants must confidently assert their right to remain silent, and a lawyer must protect this sacred right. For a free consultation with an experienced Rochester, NY criminal attorney, contact the Law Office of Frank Ciardi. Convenient payment plans are available.

The information in this blog is provided for general informational purposes only and should not be used as a substitute for legal counsel on any subject matter.

Ready to Take Charge of Your Case?

Call Today (585) 232-6830

The Law Office of Frank Ciardi - Rochester & Buffalo Criminal Defense Attorney

Call Us

Request a Free Consultation

    Visit Us

    45 Exchange Blvd Suite 400,
    Rochester, NY 14614
    View Map

    Follow Us