Why Silence is Important when it comes to an Arrest

Silence is the safest plan during a criminal interrogation, as there is little you can say that will lead to your release and there is great risk of damaging your defense with misstatements or inadvertent comments.

It happens numerous times every day in Colorado. Police confront an individual they suspect of some criminal offense. They begin asking the individual some questions. At some point, they believe the individual has committed a crime and arrest the person. Once the arrest occurs, they must read the suspect his or her "rights" before any questioning commences.

These "rights" are referred to as Miranda Rights and derive from the 1966 U.S. Supreme Court case Miranda v. Arizona. The statement begins, "You have the right to remain silent..." and is one of the few statements from a Supreme Court case that the average American can recite, having learned it through countless televisions programs and movies.

The Miranda Warning

It is important to understand what Miranda means before you encounter the police, as that understanding can help protect your rights. The Miranda warning must be given once the police take an individual into custody and begin questioning. When a law enforcement agent stops your vehicle, they do not have to offer a Miranda warning prior to speaking with you or writing a ticket for a traffic infraction.

However, if during that interaction the officer determines you are intoxicated and you are arrested on a DUI charge, the trooper will likely read you your Miranda rights. Technically, if the officer is not questioning you during the drive to the station, they would not have to read the warning, but most law enforcement will "Mirandize" a suspect to ensure any statements are admissible in court.

Custodial Interrogation

Miranda arose in response to years of cases involving coerced confessions that had been reviewed by the U.S. Supreme Court. The Court had ruled in the 1930s that the Fifth Amendment's right to remain silent was violated when law enforcement coerced a confession. Police often used the "third degree," involving physical coercion and even torture to extract a confession from suspects. By the 1950s, law enforcement had become more sophisticated, relying on psychological strategies, like isolation, fatigue and misleading statements to obtain these confessions.

When the voluntariness of a confession was challenged, courts would be forced to analyze the "totality of the circumstances" in an effort to determine if a confession was truly voluntary or had been obtained by coercive interrogation techniques.

With the Miranda decision, the Supreme Court drew a line in the sand, essentially offering police and prosecutors insurance that a confession would be admissible as long as police accurately informed a suspect of their rights and the consequence of speaking before making a confession.

Nonetheless, Miranda has been strongly criticized by police as allowing guilty suspects to escape punishment. In virtually all of those cases, however, the fault lies with sloppy or shoddy police work. When you consider just how much is riding on the outcome of a police investigation and prosecution, the requirement of the Miranda warning should not be a major imposition for law enforcement agents.

If the Court had been scrupulously rigorous in seeing to it that every suspect is fully protected by the Fifth Amendment and that they receive all of their Constitutional rights, rather than merely informing them of their right to an attorney, the Court could have required they be given an attorney before any questioning by the police.

You have to exercise your right to remain silent

If you are being questioned by law enforcement agents, you must do two things for your silence to be fully effective: ask for an attorney and state that the interrogation is over and that you will not answer any further questions.

You must do these two things because if you simply remain silent, the police can continue speaking to you and employing psychological tactics to play on your emotions and fears to trick you into making a statement. It is critical to understand that nothing you say, with the exception of asking for an attorney and ending the interrogation, will help your defense.

Surely, innocence will protect me?

Don't count on it. Numerous cases of wrongful conviction have occurred involving defendants who insisted they were innocent and trusted that the police would uncover proof of their innocence. Instead, their insistence on their innocence was sometimes interpreted as their being remorseless and unrepentant in spite of their alleged crimes.

If the police have arrested you and you are being interrogated, you may be a prime suspect if not the only suspect. As a result, the police may already be discounting other leads and suspects and focusing all of their resources on building the case against you. As the Miranda warning states, "anything you say can and will be used against you in a court of law."

Even if you are completely innocent, it is unlikely anything you say will cause them to release you from custody and send you home uncharged. What is more likely is that you might make a statement under the stress of the situation that is ambiguous, confused, unclear, or inaccurate. If you say something later that contradicts those statements, prosecutors will use them to undermine your credibility and imply your guilt.

Let your attorney do the talking

Whether you are guilty or innocent, the safer option is always to invoke your right to remain silent after requesting an attorney. No matter the grounds for the arrest, continued conversation with the police after an arrest will only weaken your defense and potentially put you behind bars for a crime you did not commit.