Miranda rights – How to keep your mouth shut (part 3 in a series)

In the first two parts of this series, I’ve discussed the law of the Miranda rights and when the Miranda rights apply.  Now, it’s time to talk about how to invoke your rights if you choose not to talk… and you probably shouldn’t as we’ll discuss in part 4).


Who can invoke your rights?

The short answer is:  Only you.  The Miranda rights are drawn from the Fifth and Sixth Amendments of the Constitution.  They are personal constitutional rights and belong to an individual.  They are your rights to waive and yours alone to invoke.  That means that even if I am your attorney, I cannot assert your rights for you.  Here’s that scenario: Let’s say you know you’re under investigation and have hired me to represent you.  The police arrest you and take you to the station.  Your family calls me to tell me you’ve been arrested.  As much as I’d like to, I cannot call the detective up and invoke your rights for you.  Of course, if I show up, it’s different.  The law says I must be allowed to have contact with you and you can guarantee I’ll be telling you to keep your mouth shut from that point on.  They are still your rights though.

When can you invoke your rights?

Although it would be nice if you could take out a small ad in the classified ads announcing to the world, including the police, that you hereby forever forward invoke your Miranda rights, you’d be wasting your money.  Because the Miranda warnings apply during custodial interrogation, when you’re actively being questioned by the police is the time when you can decide to invoke your rights and decline to answer further questions.

You can invoke for ANY questioning, not just when you’re in custody!

Typically, when a person has been arrested and they’re about to question you, they’ll read you your Miranda rights and if you’re smart, you’ll invoke and remain silent.  But your constitutional rights to not incriminate yourself exist all the time, not just when you’re arrested.  Take a typical traffic stop that leads to a DUI investigation.  You’re pulled over for some reason and if the officer smells alcohol, they’ll ask, “Have you been drinking?”  If you answer “yes,” you have just incriminated yourself.  You’re not admitting you’re under the influence or that you’ve had too much, but your statement of admitting having consumed alcohol before driving could be used against you – self incrimination.  In that DUI scenario, if they ask if you’ve been drinking, you could invoke your Fifth Amendment right.  You could simply answer his “have you been drinking” question with “At this point, I’m invoking my Fifth and Sixth Amendment rights not to answer questions without an attorney.”  No, you don’t have a right to have your attorney with you on the side of the road during their investigation, but neither do you have to help them gather evidence to convict you.

I can only imagine the officer’s confusion – they may try to respond with a “but you’re not under arrest” or “I haven’t even read you your rights” or even worse, “you can’t invoke your rights now.”  All three are wrong.  The Fifth Amendment doesn’t say you have a right to be free from self-incrimination only after you’re arrested.  It says you have that right, period.

How to invoke your rights during questioning

I’ve talked in generic terms before about “invoking your rights,” but there are different ways to effectively invoke your Fifth Amendment right to silence and your Sixth Amendment right to an attorney.  What you invoke matters in what the police may do in the future.

First – waiving your rights

My blanket advice is to not waive them and to not make a statement without an attorney.  Just to touch base with waivers of Miranda rights though…

After the police advise you of your rights, they can seek either an implied waiver or an express waiver.  An express waiver is where they ask you a question similar to “with those rights in mind, do you want to talk?’ or “Can we ask you about this” or “do you want to talk?”  They’re looking for a “yes” as your express waiver.

If they read you your rights, get an acknowledgment you understand and then simply start questioning you, if you choose to answer questions, that is viewed as an “implied waiver.”  That means that the court will assume that you chose to waive your rights because you were just told that you had the rights, but you then answered questions rather than remaining silent or asking for an attorney. It’s not necessarily as clean for the police or prosecution, but it is still a valid Miranda waiver.

Invoking your right to silence under the Fifth Amendment

You can invoke your right to remain silent either by words or conduct that express an unwillingness to talk.  For example, if they police asked you (after reading you your rights and asking if you understood, if you tell them in any way that you don’t want to talk or answer questions, you’ve invoked your Fifth Amendment right to remain silent.  Anything like “I’m not talking.” or “I don’t want to say anything/answer questions” will work.  So will simply saying “No” to them asking if you want to talk.

Invoking your right to an attorney under the Sixth Amendment

Unlike invoking your right to silence, the only way to validly assert your right to an attorney is to expressly request an attorney.  Ambiguous or vague comments about getting an attorney will not be seen as invoking your rights to a lawyer.  It is only through the direct request for an attorney that you invoke your Sixth Amendment rights.

If you say something like, “Maybe I should get a lawyer” or “I might want to talk to a lawyer first” are likely not going to be seen as you invoking your rights.

My advise:  If you don’t want to talk to the police (and there are many reasons why you don’t want to talk to the police), invoke your Fifth and Sixth Amendment rights all at once.

“I do not want to talk and I want an attorney.”

That phrase invokes your Fifth Amendment right by indicating your unwillingness to talk and your Sixth Amendment right by directly requesting an attorney.

Next in the series, part 4 – Why you probably shouldn’t talk to the police without an attorney (coming soon)


Joe Dane

Orange County Criminal Defense Attorney



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