A Wise Man Once Said: Nothing At All

Most people know, or have heard, that they have the “right to remain silent” when being questioned by law enforcement officers.  But what does that actually mean, and when should someone invoke this right?

The right to remain silent comes from the Fifth Amendment, which states: “no person shall be… compelled in any criminal case to be a witness against himself.”

The United States Supreme Court in Miranda v. Arizona held that, in order to safeguard an uncounseled criminal defendant’s Fifth Amendment privilege against self-incrimination, law enforcement officers may not begin a custodial interrogation before warning the suspect “that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.”

“Miranda Warnings” are only required when a suspect is subjected to custodial interrogation, which is a fancy way of saying that the suspect needs to be (1) in the “custody” of law enforcement; and (2) subject to questioning.

“Custody” can mean many things, and it does not necessarily mean in handcuffs, in a police car, or in jail.  The easiest way to understand if a person is in “custody” is to ask if a reasonable person standing in the shoes of the suspect would feel that they are not free to leave or terminate the questioning.  This approach takes into account all of the facts and circumstances surrounding the questioning in determining whether or not the suspect felt they were free to leave.

How exactly do you invoke your Miranda rights? A suspect needs to actually let the officers know that they would like to invoke their rights.  Silence alone, while allowed, does not necessarily invoke the rights described in Miranda.  The Supreme Court has found that an ambiguous or equivocal act or statement is not an invocation of the right to cut off questioning.  Waiver of the Miranda right can also be inferred from a suspect’s conduct. It is best to tell the officer right away that you would like to speak with an attorney before answering any of their questions, and to continue to repeat this if the officer continues questioning.

If statements are obtained in violation of Miranda, they are subject to exclusion from evidence at the criminal trial.  The exclusionary rule states that evidence obtained illegally is inadmissible in court.  This can include minor statements, as well as major admissions and confessions.  If a judge determines that statements were obtained in violation of the Fifth Amendment, it could result in the entire criminal case getting dismissed.

Even if a suspect has nothing to hide, it is still wise to invoke the right to remain silent and the right to an attorney. Law enforcement officers are trained in interrogation tactics and often wear a suspect down and trick them into making admissions that are in fact incorrect. This can happen through fatigue, or by trick questions.  It’s important to have a trained attorney with you any time you speak to a law enforcement officer.  If you have been interrogated by police without an attorney present, contact Attorney Eric Thistle to discuss whether or not your rights were violated.


Attorney Eric S. Thistle can be reached by email at eric@fairfieldandassociates.com or by telephone at (207) 985-9465.

Disclaimer: This article is intended to provide general information about Maine law. The publication of this article does not constitute an attorney-client relationship between the author and the reader.