Michael E. Golub, P.A.

When you should use your right to remain silent

If a law enforcement officer arrests you, you may hear those famous words, “You have the right to remain silent.” This is part of the Miranda warning, which refers to your Fifth Amendment protection to refrain from providing testimony that the prosecutor could use against you in court.

There are several situations when you should exercise this right.

When you are first arrested

An arrest can be scary, and it may be tempting to try to explain why you are not guilty of the offense. Any voluntary explanation you give is admissible in court, though. Even if it is not necessarily incriminating, it could work against you later when authorities question you. Under the stress of the moment, you may say something that is not totally accurate, and changing your original statement could lead to trouble.

When law enforcement questions you

Even after you tell officers that you want to invoke your Fifth Amendment right to remain silent until you talk to your attorney, they may question you. You should not take it for granted that officers will be straightforward with you during questioning, either. No one is allowed to threaten you with violence or torture you, but authorities can lie to try to get a confession from you, and they often do. They may also try to trick you through methods such as joint questioning, which you probably know as the “good cop/bad cop” routine.

When you talk to someone other than an attorney

Anything you say to an attorney is confidential, but an officer can listen to and use what you say to anyone else, such as a friend or family member. When you call someone and talk about what happened, you could inadvertently provide a self-incriminating testimony.

Although the authorities do have a lot of leeway in how they may get you to talk, a misstep by an officer could turn the case in your favor. When you invoke your right and then share the details with a criminal defense attorney, he or she may be able to identify evidence that could get your case thrown out or your sentence reduced.

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