Right to Remain Silent

The phrase is so familiar, most Americans can recite it: “You have the right to remain silent.” It’s the first line in the standard Miranda warnings, and it’s followed by another familiar phrase: “Anything you say can and will be used against you in a court of law.” These rights are extended to all citizens, though they have different application depending on the facts of a given situation.

Talking to Officers

Contrary to common belief, officers are not required to read you your Miranda rights when you are arrested. Perhaps more surprisingly, there are situations where you may not be formally under arrest, but where officers should read you your rights, anyway. The rule is complex and based on many different court opinions, but, in essence, Miranda warnings must be given if 1) a suspect is not free to walk away from officers, and 2) officers wish to use his statements against him.

Thus, if a suspect is invited to come in to the police station, is seated in an unlocked room, and is interrogated by officers for several hours, the state may have an argument that Miranda warnings were unnecessary because the suspect was always free to leave the police station. Miranda warnings are also unnecessary if a suspect is formally arrested, but officers do not plan to use his statements against him. In both cases, the state may be able to successfully prosecute the defendant, even though he was never given Miranda warnings.

At Trial

Criminal defendants – and others, as well – have the right to remain silent throughout a court proceeding, whenever their testimony might support a criminal charge against them. A defendant cannot be called by the state as a witness in his own case, and the prosecution is not allowed to comment on his decision not to testify.

The state may, however, use many of the out-of-court statements of the defendant to help support the charge. Witnesses can repeat incriminating statements made by the defendant, officers can recount the results of their interrogation of the defendant, and recordings of the defendant’s own voice can be played for the jury in appropriate cases. All of this can be considered by the jury as they try to determine whether the defendant is guilty of the crime charged against him.

To Speak or Not to Speak

In the face of what can sometimes seem to be strong evidence of guilt, many suspects and defendants can feel overwhelming pressure to tell their side of the story. Officers will often capitalize on this, seem open and sympathetic, and promise to put in a good word with the state if the suspect will provide details of the crime. Prosecutors, too, will take as much advantage as possible when a defendant chooses to testify at trial, seeking to catch him in any small mistake in order to show the jury and the judge that the defendant is a liar.

If you are ever tempted to explain what happened or why you’re not guilty, it is helpful to remember that 1) cops will usually hear everything you say through the filter of their absolute belief in your guilt, and 2) prosecutors will pounce on every irregularity, no matter how innocent, and use it to encourage the jury to conclude that you are lying.

It is essential that you always consult with a qualified criminal defense attorney before making any statement to law enforcement or other state representatives. So, too, before you decide to testify at your own trial, review every possible question and answer with your attorney beforehand and weigh all the risks before you proceed. Because, while you do have the right to remain silent, it is more essential to remember that anything you say can and likely will be used against you.

Lloyd H. Golburgh has the experience to guide you through your criminal case, and to help you find the right moment – if it ever presents itself – to talk about your side of the story. If you’ve been charged with a crime in South Florida, contact us today for a consultation.