What does the Right to Remain Silent
really mean?
How many times have you heard someone say "I'm going to
plead the Fifth." If you've heard that before, they're referring to our
U.S. Constitution and the Bill of Rights. The Bill of Rights is the first 10 Amendments
to our U.S. Constitution. These rights protect us from the government (police
are part of the government). Our right to remain silent is written in the Fifth
Amendment to the U.S. Constitution. There are many rights packed into the 5th
Amendment. Here are the exact words:
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or indictment of a Grand
Jury, except in cases arising in the land or naval forces, or in the Militia,
when in actual service in time of War or public danger; nor shall any person be
subject for the same offence to be twice put in jeopardy of life or limb; nor
shall be compelled in any criminal case to be a witness against himself,
nor be deprived of life, liberty, or property, without due process of law; nor
shall private property be taken for public use, without just compensation.
- 5th Amendment to the U.S. Constitution
Why is the right to remain silent
important?
The part referring to the right to remain silent is in bold,
and underlined above. The right to remain silent is so important because it
protects you from being forced to say things, write things, or confessing when
being questioned by police. It is a shield between you and the government
(police are part of the government)!
Being compelled in a criminal case as a witness against
yourself is the fancy way of saying that the government can't force you to
testify against yourself or self incriminate. Being forced to testify against
yourself pretty much explains itself. If you are charged with a crime, the
government or the prosecutor can't force you to testify.
Over time the Courts have said that our Fifth Amendment
right to remain silent includes contact and questioning with police. Police are
allowed to go up to you and talk to you on the street, or in your car. However,
you don't have to answer the questions police ask you other than identify
yourself. Your right to remain silent includes all police questioning -
including confessions. Never confess to anything and especially don't put
anything in writing when the police question you. I'm a big fan of examples so
let's use an example.
Police Questioning and The Right to
Remain Silent
A few months ago I had a client named John who was arrested
because police suspected him of dealing drugs. Police picked John up with a Warrant of Arrest at his home and brought him to the
station for questioning. Police read him is Miranda Warnings. If you've
ever seen an episode of Cops or Law and Order you've heard this a millions
times:
“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 an
attorney. If you cannot afford an attorney, one will be provided for you. Do
you understand the rights I have just read to you? With these rights in mind,
do you wish to speak to me?”
The moment the police went to John's house, knocked on the
door, and began asking John questions other than his name, his 5th Amendment
right to remain silent had kicked in. Why?
John's right to remain silent kicked in because the police
asked John questions after he identified himself. John could have told police
"I don't want to talk to you or answer any questions" and that would
have been perfectly legal. As a matter of fact, that's exactly what I would
have advised John to do if I was sitting next to him. The police are allowed to
ask as many questions as they'd like and as many as you'll keep answering.
Luckily, John didn't answer very many of the questions police asked. More
importantly, the police didn't question John further or try to get a confession
out of him. John kept his mouth shut, and because of that his felony drug charge was dropped down to a
misdemeanor.
Summary
The true meaning of the right to remain silent is for people
to be free from government (police) questioning. Never answer questions from
police unless the question is to identify yourself. Miranda Warnings are given
to you by police so that you are aware it's your right not to speak with
police. Knowing the meaning of the right to remain silent can help protect you
from past or future criminal charges that police investigate. Always follow the
law.
But just remember, don't make the cops' job easier than it
has to be and if nothing else, don't do their jobs for them. Remember the
meaning of our right to remain silent.
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