“YOU HAVE THE RIGHT TO REMAIN SILENT” MEANS SHUT YOUR MOUTH
Whether on TV or in movies, when you hear that famous line ‘YOU HAVE THE RIGHT TO REMAIN SILENT’ it is always followed by a person being placed in handcuffs. It has such a negative connotation. It is so closely associated with being in trouble that people fail to grasp what it really means, or why it is said.
What Does It Mean?
Under the 5th Amendment to the U.S. Constitution, no person “shall be compelled in any criminal case to be a witness against himself.” In other words, you have a Constitutional right, as fundamental and as powerful as freedom of speech and equal protection, to NOT talk to a law enforcement officer.
Why is it Said?
The right to remain silent is so fundamental that the Supreme Court ruled in 1966 that law enforcement officers must inform you of this right before they can question you.
On TV it is far more dramatic than in real life. In the real world, law enforcement officers will hang out with you in an office, grab you a soda, talk about the Yankees game, and casually breeze through telling you of your Constitutional right to remain silent. They’ll tell you “it’s just a formality but I gotta read this to you,” before informing you of your rights. They will tell you things like “don’t worry, you are not in trouble,” or “you are only helping yourself here,” and “just tell the truth and you get to go home.”
When an officer tells you that you have the right to remain silent, whether you realize it or not, you are in custody. You may not be in handcuffs, you may not be in the back of a police car, but once you hear “you have the right to remain silent,” you are not going anywhere.
From that point on, “[a]nything you say can and will be used against you.”
In our years of practice, we have never had a client get in more trouble for keeping his mouth shut. Nevertheless, most people still talk to police after being advised of their right not to.
How Do You Make Questioning Stop?
Under the New York Constitution, each of us is afforded the indelible right to counsel. What this means is once you unambiguously request to speak to an attorney, all questioning must stop. Even if you do not actually have an attorney, by making the request for one, all questioning must stop.
I repeat, once you request to speak to an attorney, all questioning must stop.
Be informed. Exercise your rights. Your rights matter.
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