The Fifth Amendment provides no person “shall be compelled to be a witness against himself.” This means that a person may not be forced to speak with the police or certain other governmental agents. If one chooses to remain silent, the prosecutor cannot call him as a witness, nor can a judge or attorney force that person to testify.
To protect this right, the Supreme Court has ruled that a special warning be given (commonly referred to as a Miranda warning), coupled with a valid waiver, as a prerequisite to the admissibility of any statement made during custodial interrogation. Prior to interrogation, the police must inform a person in custody that: (i) He has the right to remain silent; (ii) Anything he says can be used against him in court; (iii) He has the right to the presence of an attorney; and (iv) if he cannot afford an attorney, one will be appointed for him if he so desires. This requirement applies to both state and federal publicly paid police.
When Miranda Warning Required:
Anyone in custody must be given a Miranda warning prior to police interrogation. A person is in custody when, based upon the circumstances viewed objectively, he is not free to leave (e.g., traditional arrest (hand-cuffed & placed in patrol vehicle)). A person is interrogated when the police take any action (verbal or non-verbal) that they should know is reasonably likely to elicit an incriminating response from that individual.
How Right To Remain Silent May Be Waived Or Invoked:
A person may waive their right to remain silent by simply responding to police interrogation after receiving a Miranda warning. It is therefore essential that a person placed in custody immediately invoke his right to remain silent by explicitly, unambiguously and unequivocally informing the police that he intends to exercise that right (e.g., saying something like “I want to invoke my constitutional right to be silent” is probably sufficient). Regardless of whether a person in custody invokes his right to be silent, it is never in that person’s interest to talk with the police. The only safe person to talk with about the facts relating to his being placed in custody or being charged with a crime is that person’s attorney. A person placed in custody should therefore not only immediately invoke his right to be silent, but also unambiguously and specifically ask to speak with his attorney.
When Police Fail To Give Miranda Warning:
The legal effect of a failure to give a Miranda warning, or to give an incomplete warning, will depend upon the circumstances of a given case. A court will look at all the facts to determine whether a statement will or will not be admitted at trial. There is accordingly no guarantee that a statement (or statements) will be excluded. When it is not clear whether they are free to end their conversation with the police and leave, persons should use utmost caution when speaking with the police. A person who feels their ability to freely walk away from a police officer should immediately invoke his right to be silent and ask to speak with his attorney.
As a person living in the United States, the right to be silent is the centerpiece in your Bill of Rights. Do not discard this right by speaking with the police. Invoke your right to be silent, and call an attorney who is able to protect you against the police and help defend you, if necessary, in a criminal action.