When Do I Have the Right to Remain Silent?

The short answer is “ALWAYS.” However, unlike most cop shows on TV, from Kojak to Law and Order and every one in between, police officers will typically not “read you your rights” at the outset of their contact with you. This is probably the #1 misconception we hear from clients regarding their contact with police — “But they didn’t read me my rights!” The reality is that police only have to read you your rights under very narrow circumstances. But that doesn’t mean you have to speak when spoken to during a law enforcement confrontation.


When we talk about “your rights” in this context, we’re talking about the constitutional rights guaranteed to you under the 5th and 6th amendments to the U.S. Constitution. In legal-speak, these are called your Miranda rights, named after the case Miranda v. Arizona, which was decided by the U.S. Supreme Court in 1966. Broadly, we are referring to your right against self-incrimination and your right to counsel.

In the Miranda decision, the Supreme Court spelled out the substance of the warnings that officers are required to give to you, either in writing or orally, before questioning you:

  • You have the right to remain silent. Anything you say can and will be used against you in court. (5th Amendment)
  • If you start answering questions, you may stop at any time. (5th Amendment)
  • You have the right to talk to a lawyer before questioning, and to have an attorney present during questioning. If you cannot afford to hire an attorney, but you still want one, an attorney will be appointed to represent you before questioning. (6th Amendment)
  • If you start to answer questions without a lawyer present, and then decide you want a lawyer, you may stop the questioning at any time and request a lawyer. (5th & 6th Amendments)

Sound familiar? The cops on TV shows typically speak some version of these warnings to suspects while the officer is slapping the cuffs on. However, in real life, police are only required to inform you of these rights when two conditions are present — (1) when you are in custody, and (2) before you are interrogated (questioned). Both conditions have to be present to kick in the officer’s obligation to warn you. In other words, if you are in custody, but the officer does not ask you questions, then the officer technically does not have to give you the warnings. Likewise, and more typical, if you are not in custody, but the officer starts casually (or aggressively) asking you questions, the officer also is not required to give you the warnings.


We will talk more about the confusion over the words “in custody” in Part 2 of this blog : “Am I in Custody?” The important point to remember is that you may not hear these Miranda warnings during every encounter with police; but your constitutional right to remain silent still exists! As uncomfortable as it may feel at the moment, you must assert your right NOT to speak. Like all of our rights, they can only protect us if we use them. As the saying goes, “Use ‘em or Lose ‘em.”

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