What Do You Have the Right to Remain Silent About?

Posted by Neil Shouse | Jun 07, 2012 | 0 Comments

One of the most common questions DUI clients ask me is, “What if they didn't read me my rights?” This question is generally posed in a way that clearly suggests that the client believes he or she has their smoking gun to get out of the problem they have recently got themselves into.

There is no question that at the time the question is posed there is a misunderstanding on the part of the client about what “reading their rights” means. In fact, in every occasion where I have questioned the client as to what the rights were, they parroted these rights exactly as they heard them on their favorite television police or detective show always starting off with: “you have the right to remain silent . . . . .”

Interestingly enough, it's the right to remain silent people don't understand and fail to invoke.

It seems to me that people, knowing they have a right to remain silent, will lie rather than remain silent. Lying and remaining silent are 2 completely different things with 2 completely different effects on a case.

A lie takes away from the client's credibility as well as proposes to a jury that the fact the client lied could suggest the client had some knowledge of his or her guilt. In fact if it is established through trial that a defendant may have lied then the jury is given a jury instruction that they could consider that to be because the defendant had knowledge of his guilt.

Whereas, remaining silent is just that. In fact a jury can't ever be informed by any means that a defendant chose to remain silent or invoked his rights under the 5th amendment to the constitution to remain silent. It is required to be a void in the line of information allowed to be given to a jury.

So it is important to not only be able to say the Miranda Rights like they do in the television shows, but, more importantly, to understand those rights, especially the right to remain silent.

First don't be afraid to invoke the right. Cooperating with the police when you are the target of an investigation does not mean you have to speak to them. Call your attorney first or let the police know you “won't answer any statements without an attorney present.”

Second, recognize WHEN you need to invoke these rights. For instance, if you are stopped by police and the officer tells you he stopped you for speeding, a question regarding alcohol is a sign to remain silent.

If you are asked to perform ANY type of physical field sobriety test after you are stopped for speeding, then you respectfully refuse to do that. That includes following an officer's finger!

If you are asked to blow into a hand-held breathalyzer test prior to being placed under arrest, then you respectfully refuse that to do so. It may be a good idea at that time to request to take a blood or breath test IF YOU ARE BEING PLACED UNDER ARREST FOR DUI.

Lastly, be respectful while still staying strong. There is no reason to be rude to a police officer. In fact, it can prove to be a very bad idea. But don't give in. Remain silent. Refuse those things you are legally allowed to refuse. Invoke your rights. There are more than just parroted words. For information on the double-edged sword of giving up your right to silence, refer to our article on the right to silence under California law. And for information about coerced confessions, refer to our article on California police coercing confessions.

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.


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