Invoking Your Right to Silence, Don’t be Silent About Being Silent!

The protections enshrined in the ubiquitous words of the Miranda rights are meant to protect your right against self-incrimination. However, these rights are not self-executing, and require affirmative invocation in order to be effective. The need for invocation is particularly important regarding the right to remain silent.

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In order to invoke your right to silence, you must affirmatively invoke that right[1]. Following the decision of Berghuis v. Thompkins[2] The Supreme Court in a 5-4 judgment has held that to invoke your right to remain silent, you must affirmatively invoke that right. If you fail to affirmatively invoke your right to silence but remain silent, that silence may be used against you to show that you had knowledge of your right to remain silent.

The need to affirmatively invoke your right to remain silent less your silence be used against you is necessary to protect against a waiver of your Miranda rights. A waiver of your Miranda rights must be “Knowing” and “Voluntary”[3]. Mere Silence is not enough to constitute a waiver of your Miranda rights[4]. However, failing to invoke your right to remain silent but remaining silent may be used to show that you knowingly waived the right to silence if you later speak to police.

Once one has invoke the right to silence, police must cease questioning immediately. However, invoking your right to silence does not mean that police cannot question you again. Police may reinitiate questioning after you have invoked your right to silence, so long as they avoid “badgering” the defendant[5].

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If you find yourself in a situation in which law enforcement officers are reading your Miranda rights to you, make sure to state affirmatively that you are invoking your right to remain silent. Once you have invoked, do not speak to officers. There is no reason to not invoke your right to silence, and there is every reason to invoke your right to silence. Make sure to vocally express your right to silence, to legally protect your silence. After you have invoked your right to silence, request your lawyer.

Written by Hunter White

[1] Davis v. United States, 512 U.S. 452, 114 S. Ct. 2350 (1994)

[2] Berghuis v. Thompkins, 560 U.S. 370, 130 S. Ct. 2250 (2010)

[3] North Carolina v. Butler, 441 U.S. 369, 99 S. Ct. 1755 (1979)

[4] Miranda v. Ariz., 384 U.S. 436, 86 S. Ct. 1602 (1966)

[5] Edwards v. Ariz., 451 U.S. 477, 101 S. Ct. 1880 (1981)

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Gilbert Garcia has been Passionately Pursuing Justice for over 30 years and founded The Gilbert G. Garcia Law Firm in 2008. The Gilbert G. Garcia Law Firm is a boutique law firm, specializing in Criminal Defense. Gilbert represents adults and juveniles accused of a crime and who have with a felony, misdemeanor or record cleaning case. Conveniently located on the courthouse square to serve Montgomery and Walker Counties. Gilbert became Board Certified in Criminal Law by the Texas Board of Legal Specialization in 1989. The Gilbert G. Garcia Law Firm is located at 220 N. Thompson St., Suite 202, Conroe, TX 77301.  www.ggglawfirm.com