5 Things You Need to Know About Invoking Your Rights

Today is the 52nd anniversary of the Miranda vs. Arizona decision that established what we now know as Miranda rights. You know the ones from Law and Order and just about every other legal TV show:

"You have the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to a lawyer. If you cannot afford a lawyer one will be appointed for you by the court."

Just about everyone has heard these warnings, but many may not understand when they do and don't apply and how to invoke them. Here are 5 things you need to know about invoking your rights.

  1. Miranda only applies when you are in police custody. The police do not have to read you your rights if they question you prior to arrest (in a traffic stop, walking up to you on the street, etc). "In custody" means under arrest or if they've restrained your freedom to such a degree that it's like being under arrest. If you volunteer to an interview (agreeing to come down to the station to talk), you're not "in custody" and they don't have to read you your rights.
  2. Miranda warnings must be given at the beginning of any "in custody" questioning. They can't ask you a bunch of questions and then, in the middle of questioning, read you your rights as an afterthought.
  3. A waiver of Miranda rights has to be knowing and intelligent, but doesn't need to be written.
  4. Invocation of your right to a lawyer must be unambiguous and clear. You can't say "I think I need a lawyer..." The word "think" allows the police to ignore it and keep going. The best practice is to clearly say "I need to talk to my lawyer" and then stop talking. Only you can invoke your right to a lawyer. Your family or loved ones can't invoke your right to a lawyer. Even your lawyer can't invoke your right. You and you alone must clearly say "I need to talk to my lawyer" and then stop talking.
  5. You have to actually speak to "remain silent." The law requires that you actually speak to invoke your right to remain silent. If you just stay silent the police can actually keep questioning you. You actually have to say "I am going to invoke my right to remain silent." It's best to invoke both silence and your right to a lawyer at the same time ("I am going to invoke my right to remain silent and I need to talk to my lawyer."