(Do) You Have the Right to Remain Silent(?)

We have all seen cops shows and legal dramas where an officer reads a perp his rights. The reading of rights has so pervaded public consciousness I’d be you can recite them yourselves:

You are under arrest. You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have a right to an attorney. If you cannot afford an attorney, an attorney will be appointed for you.

This magic phrase is a Miranda advisement or warning. It takes its name from the United States Supreme Court case called Miranda v. Arizona, 384 U.S. 436 (1966) where the High Court held that the right against self-incrimination codified by the Fifth Amendment to the United States Constitution requires law enforcement to advise a suspect who is in custody of certain rights before the suspect can be questioned.

Here’s the thing. When confronted by police questions, you can always shut up. The police cannot compel you to speak. In fact, not saying anything is usually the smartest choice a person could make when the police pull you over or stop you to question you. No one exercises this option, but they could.

So, this whole notion of the right to remain silent is kind of misleading. You always have the right, but exercising it takes real discipline and savvy. The real question is: if you do talk to the police, when you can prevent the State from introducing your statements as evidence against you?

The answer is much less satisfying than the “right” to remain silent suggests.

While your right against self-incrimination is robust and powerful and your freedom to stare blankly at a questioning (even an angrily questioning) officer is wide and deep, you have no such “right” to prevent the State from using statements you freely made to law enforcement against you at trial. Rather, you have the option, if the circumstances are just so, to seek an order suppressing these statements from use at your future trial for certain purposes. And exercising that option will require the assistance of an attorney.

As I briefly alluded to above, Miranda established that the police must advise you of your rights before they question you, but only in certain circumstances. In particular, you must be “in custody” and the police must be actively questioning you (rather than making small talk). The “in custody” determination is the whole ball game. And it is a nuanced and contradictory enterprise.

For example, just because you are at the police station in an interrogation room separated from your family, you may not be “in custody.”

Courts must consider all of the circumstances of your questioning and determine whether a reasonable person in your circumstances would have felt free to leave or end the questioning. This inquiry depends only on so-called “objective facts”–i.e., not the subjective intent or ideas or plans of the particular officer questioning you or how you felt at the time. The court will only look at the universe of measurable, external facts; not internal thoughts, feelings, assumptions, or beliefs of you or the police.

The idea is if the Court puts blinders on as to these subjective aspects of your questioning, the Court will be able to make more uniform and fair decisions. It doesn’t really matter though because it is what is and the Court will rule this way every time.

If the Court determines you were in custody, the only outstanding issue is whether you were advised of your rights. If you not, the remedy is suppression of your unadvised statements; not any statements you made before you were in custody.

Moral of the story is this: if you think you are being investigated for a crime, it is always in your best interests to remain silent and wait to speak to an attorney. No matter what the police say, suggest, or do, anything you tell them will not serve you later. This is not a knock on the police–they are just doing their job. The point is the police do not represent you; they are trying to figure out what, if anything, you may have done. Only an attorney you retain (or who is appointed to represent you)–who has an ethical obligation not to disclose any statements you make to him or her about your prior conduct–is in a position to hear your story, explain the possible consequences, and identify your best path forward without exacerbating your situation.