Like most, you've probably seen all the crime dramas where a suspect is taken into a small, windowless room down at "headquarters" and questioned by police detectives. In some cases, the suspect is read their Miranda Rights before questioning begins, and sometimes not. If you are being questioned and are not actually in police custody, do you still have the same rights as the Miranda warning guarantees? Read on to learn more about your right to remain silent.
What is the Miranda Warning?
In the U.S. justice system, anyone who is arrested has the right to legal representation, and that right begins before you speak. If you say anything to law enforcement once you have been read this warning, it can and will be used against you. Once the warning is read to you, you are put on notice that you have the right to have your attorney present and to ask for one to be appointed to you if you cannot afford one.
The Fifth Amendment
The actual law from which the Miranda Warning was born is the powerful Fifth Amendment of the Constitution. This is the same provision that allows those being questioned during a court trial to "plead the fifth" to avoid incriminating themselves. That same law also protects those being questioned after they've been arrested.
Not Under Arrest
In some cases, you may be brought in for questioning but told that you are "not under arrest" or that you are just "being detained". If you are not under arrest, do you still have the same rights against self-incrimination as those arrested? In most places, there are no requirements that you be read your rights if you are just being questioned, but that does not mean that you don't have the right. Regardless of whether or not you have been "Mirandized", you should evoke your right against self-incrimination by stating "I invoke my rights not to answer questions under the Fifth Amendment to avoid self-incrimination". The wording doesn't need to be exact, however.
Many people make the mistake of clamming up when they face questioning. You should understand that refusing to say anything at all is not the same thing as proclaiming your Fifth Amendment right. You usually have to identify yourself to law enforcement and if you want to have legal council you must declare your Fifth Amendment rights. Simply keeping silent is not recommended and failure to speak may be used against you in court.
Whether you have been arrested or just detained, you have the right to legal representation. Call an attorney, like one from Barbour & Simpkins LLP, immediately, no matter what.