Miranda Rights: What Are They and How to Exercise Your Right to Remain Silent?

June 25, 2024 Criminal Defense

difference between detained and arrested

Your Miranda rights are your right to remain silent, and the right to an attorney. Remaining silent does not allow law enforcement officers – or anyone for that matter – to say you are lying, nor does it allow misinterpretation or misunderstanding. Anything, and I mean anything you say – to anybody – can and will be used against you in a court of law. You have the right to have an attorney before any questioning. Make sure if you are going to say something that you have a criminal defense attorney present, not on the phone, not on FaceTime, but standing there with you – so you can speak in private, if you speak at all.

How to Exercise Your Right to Remain Silent 

If you are a suspect, detained, arrested: remain silent and ask for an attorney. Politely tell any law enforcement officer or any person questioning you, “I do not wish to speak with you. I do not wish to say anything. I do not wish to make any statements.” That is how to exercise your right to remain silent. 

Why should I remain silent if I didn’t do anything wrong? Because it is silence that saves the day! You don’t want to trust someone else, particularly a law enforcement officer who has just arrested you, to correctly represent what you have told them. Most of the time, they get it wrong and only hear what they want to hear. Make sure to politely and repeatedly tell law enforcement, security guards, others at an accident scene or anyone questioning you as a suspect in any alleged criminal behavior that you don’t want to talk. You should also ask politely and repeatedly to speak with an attorney. Don’t let anyone engage you in a conversation because that is not remaining silent. Even though you’ve invoked your rights by politely and respectfully saying you don’t wish to talk and request an attorney, law enforcement can re-engage you and you could end up waiving the right you previously invoked. Remain silent. 

How do you handle speaking with a law enforcement officer without waiving your Miranda rights? Be polite and remain silent. Other than saying who you are, also known as identifying information (name, date of birth, address, Social Security number): shut it, zip it, and don’t say anything. Don’t try and talk your way out of anything. Given the right circumstances, you may just “beat the rap, but not beat the ride.”

The false sense that is given to you that if you say the right thing, you won’t get a citation or won’t go to jail, is just that – a false sense. Always be respectful and polite to law enforcement.  It only benefits you, your case and your safety. Nowadays, a prosecutor – and many times a jury – will see how you acted. Sincere respect and treating law enforcement with respect is your way of gaining an edge for you and your case. Don’t engage in conversation. You can be polite without talking. Tone, attitude, and a sincere “yes, sir” or “yes, ma’am” only helps.

Law enforcement are trained in interrogation techniques and are there to gather information. They are there to do a job – one that may not be in your best interests. They may do that job very well. Law enforcement officers often have the “gift of gab” when it comes to getting people to talk. That gift is enhanced by “Officer Presence” – the first level on what is called the “Force Continuum” or “Force Matrix” dealing with levels of force used by law enforcement officers. It is intended as intimidation.  

That’s the very reason bright, shiny police cars stand out, with blinding blue lights. Because that shows presence and intimidation which in turn, gains compliance by force. The mere presence of the bright shiny car, the pressed uniform, the gun, the shiny badge – these are all intended to show force and by force, gain compliance with the law. Have you ever been driving down the road and see blue lights? The first thing you do, if you are in a car, is tap your brakes and check your speed.  

Why? You don’t want to get in trouble for speeding. That same feeling of not wanting to get in trouble or fear of being handcuffed or placed in the back of the car is the strongest influence to get you to talk. It is a use of force without the law enforcement officer ever saying a word. It makes you nervous – it induces an unwelcome sensation in the pit of your stomach. It is the reason people have the right to remain silent – but in that instant of intimidation – they lose the ability to remain silent. Simply, officer presence can trigger the most quiet, reserved person to start jabbering away uncontrollably because they are afraid of getting in trouble.  

Remain silent. Politely advise you do not wish to say anything and you do not wish to make any statements. Clearly and politely ask for an attorney – preferably an aggressive attorney who is intimidating to the officers and not intimidated by anyone, especially the officers. Your best attorney is one who does not feel the pressures of that force being utilized, who is strong, trusted, and can be diplomatic while being aggressive. One that law enforcement officers respect because they know that the attorney does their job and does it well. I personally have a strong presence and confidence. I will thank officers for their service and do so with sincerity. They know I’m sincere. 

They also know I am sincere when I tell them my client isn’t going to make any statements. They also know I am sincere when I tell them on the record – it’s not personal, I’m just doing my job.  I have always loved a saying that was in the training room of one of the greatest trainers, Jim “Mad Dog” Madelino: “If I want your opinion, I will give it to you.” It’s kind of my attitude in dealing with some of the not so friendly persons I deal with in my job. Many officers have learned a great deal when I take them to the proverbial school, and educate them on their mistakes that violated my client’s constitutional rights. 

I love my job. I love when a client remains silent and maintains the ability to remain silent. I love it when they ask for an attorney, when I see on the body worn camera (BWC) the frustration (but mostly professionalism) toward a client that remains silent. It is even more satisfying when I see a suspect or client show courtesy and professionalism to some officers who do the same in kind.  The right to remain silent is protected – and silence wins the day!

A Brief History of Miranda Rights

Situations implicating Miranda have two components:

  1. Custody: You are not free to leave, you are detained. This custody does not apply to a simple traffic stop. You must be detained, handcuffed and not free to move around, not free to leave.
  2. Interrogation: Police have to ask you a question. If there are no questions, no interrogation – and thus no Miranda.

Until 1966, comments made by suspects regarding their involvement in criminal offenses, including confessions, could be used in a court of law against them – even if they were never warned this could occur. That changed with the advent of Miranda warnings, which were created in response to the Supreme Court’s decision Miranda v. Arizona (1966).

In this landmark case, Ernesto Miranda signed a confession after a two-hour interrogation to a kidnapping and rape he was arrested for. However, Miranda alleged he did not know of and was never informed of his right to an attorney or remain silent in response to police questioning. Because of this, Miranda argued to the Supreme Court, his confession should not have been admissible.

In what was widely viewed as a seismic shift regarding how courts approach the issue of confessions, the Supreme Court ruled that no post-arrest statements made by a defendant can be used against them in a court of law unless they were notified of their right to remain silent, and their right to an attorney, in accordance with the Fifth and Sixth Amendments to the U.S. Constitution. 

“At the outset, if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent. For those unaware of the privilege, the warning is needed simply to make them aware of it—the threshold requirement for an intelligent decision as to its exercise. More important, such a warning is an absolute prerequisite in overcoming the inherent pressures of the interrogation atmosphere.” Chief Justice Earl Warren in Miranda v. Arizona, 384 U.S. 436 (1966).

Not only did Miranda v. Arizona change police practices in Arizona – the state in which Miranda was arrested – it mandated the adoption of these warnings throughout the country. As a result, officers placing individuals under arrest now inform them of their constitutional rights as a defendant, including:

  • Their right to remain silent
  • That anything they say can and will be used against them in a court of law
  • Their right to an attorney, and that if they cannot afford an attorney, one will be provided for them

Prior to Miranda v. Arizona, there were few regulations surrounding the use of confessions and other post-arrest statements which may implicate individuals of involvement in criminal activity. Confessions were sometimes thrown out on the basis of coercive police conduct or someone’s state of mind being altered at the time of a confession, as to render that confession involuntary. The Supreme Court ruled in Blackburn v. Arizona in 1960:

“ A number of cases have demonstrated … that the efficiency of the rack and the thumbscrew can be matched, given the proper subject, by more sophisticated modes of ‘persuasion.’”  Blackburn, 361 U.S. 199 at 206.

Blackburn and other cases recognized that physically or psychologically coercive police conduct, as well as suspects having altered states of mind after taking narcotics or having been administered agents such as anesthesia, can contaminate post-arrest statements by someone accused of criminal activity and make them ineligible for use in court.

But Miranda went a step further just six years later. Following Miranda, not only are coerced and involuntary confessions prohibited from being admitted in court – all confessions are prohibited from being admitted if a defendant was not first informed of their right to remain silent and the right to consult an attorney at the time they are taken into custody.

Additionally, any waiver of someone’s Miranda rights after that individual has been given a Miranda warning must be knowing, intelligent, and voluntary

“Prior to any questioning, the person must be warned 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. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently.” Miranda v. Arizona, 384 U.S. 436, 444.

Thus, even if someone makes post-arrest statements after being advised of their Miranda warnings by an arresting officer, these statements still cannot be used against that person in a court of law UNLESS they voluntarily, knowingly, and intelligently waived their rights. Where a confession is obtained after administration of Miranda warnings, the State bears a “heavy burden” to demonstrate the defendant waived their privilege against self-incrimination and the right to counsel, especially where the suspect is a juvenile. Colorado v. Connelly, 479 U.S. 157, 167 (1986). Additionally, under Blackburn, a confession must be “the product of a rational intellect and a free will.” 

If someone is taken into custody, the best decision they can make is to remain silent and politely decline to answer further questions from police. The law of the land is that every individual who is arrested must be made aware that they have these rights. It’s not just important to be aware of your Miranda rights – it’s important to exercise them. Invoke your right to remain silent, and do not re-engage with officers if they attempt to reopen the conversation and pry information out of you.

Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for almost 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

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As a former prosecutor, former state police officer and a life member of the Florida Association of Criminal Defense Lawyers, Don Pumphrey Jr. has observed that being arrested anywhere in Florida can be extremely stressful. Being charged and “formally charged” by information in Tallahassee or Leon County, Wakulla County, Jefferson County, Gadsden County, Quincy, Crawfordville, Florida State University, Florida State University Campus, Florida State University Student Code of Conduct, Tallahassee Community College, Florida A&M University, or facing first appearance in Leon County, can be life changing. Given the possibility of a lengthy jail or in some cases lengthy prison sentence and hefty financial penalties, it is important to contact an aggressive, trusted and experienced Tallahassee criminal defense attorney as soon as possible.

Don Pumphrey, Jr. and the attorneys at Pumphrey Law have decades of experience fighting on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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