Prior to an arrest, the arrestee is read their Miranda rights which state they have the right to remain silent; however invoking their Fifth Amendment Rights prior to an arrest may actually involve speaking after all.
Cooperate without self-incrimination
When an individual is facing legal trouble, it is common for that person to either:
• Cooperate and communicate fully with law enforcement, often offering more information than they should, or
• Clam up, refusing to say a word because they have the “right to remain silent”, right?
Unfortunately, there is a fine line that persons facing arrest must tread between cooperating with police and protecting their Fifth Amendment Rights against self-incrimination. Although everyone has the right to remain silent, that doesn’t always mean it’s the best choice to be a stone wall. Complete silence could be seen as insubordination or even guilt. So when should a person remain silent and how can they do so without causing rifts with law enforcement?
The Miranda Warning is given to everyone prior to arrest and acknowledges the arrestee’s right to remain silent and to obtain counsel before being questioned. Once the Miranda Warning is read, it is wise to keep quiet until legal counsel is there to assist in the interrogation. What about the sometimes lengthy time before being arrested? What if an individual isn’t actually being arrested, just questioned?
Questioning or interrogation
If an individual is facing questioning from law enforcement without an attorney present and they feel wary about answering any questions, they can politely ask police if they are being arrested or if they are free to go. If they are not being arrested, then they have no legal obligation to stay and answer questions from officers on scene. If officers state that they are being arrested or detained, that is when the individuals should have the Miranda Warning read to them. If the questions persist without a warning given, the arrestee should then invoke their right to remain silent, by verbally informing officers they:
• Are invoking their Fifth Amendment Rights (or Miranda Rights);
• Wish to remain silent; or
• Would like their attorney present.
According to the United States Supreme Court in Davis v. United States, “If the suspect invokes that right at any time, the police must immediately cease questioning him until an attorney is present.” Once a person has invoked their Fifth Amendment Right to remain silent, they are encouraged to contact a reputable criminal defense attorney to be present in all future interrogations.