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Why You Should Exercise Your Right to Remain Silent and Your Right to an Attorney… Even if You’re Innocent (Part 2)

by J.D. Garrett on November 7, 2013

Exercising your right to remain silent and your right to an attorneyAs we recently discussed, the right to remain silent and right to an attorney during police questioning are two essential safeguards within our criminal justice system. Despite these protections – known as the Miranda rights – roughly 80% of suspects waive these rights. If you are arrested for a crime in Virginia, it is important to understand how to exercise these rights and the protection that they afford.

How Do You Exercise the Right to Remain Silent?

The most direct way for a suspect to invoke the right to remain silent is to clearly state, “I am invoking my right to remain silent.” Once a suspect invokes the right to remain silent in this manner, police are required to stop any interrogation. A suspect can also invoke the right to remain silent by refusing to speak; however, this method is more ambiguous than an express statement and the interrogation may continue.

In some instances police may lawfully question a suspect after a valid invocation of the right to remain silent. Under the “initiation doctrine,” a court may find that a suspect waived his or her Miranda rights if the suspect initiates further discussions about the crime or the investigation with the police. While police should have the suspect first sign a written waiver of these rights, courts do not always require this.

Thus, for example, a suspect who states “I’m exercising my right to remain silent,” but then begins to explain why he is innocent, may be deemed to have waived his right to remain silent. Anything the suspect says now can be used against him in court. However, a suspect’s request to use the phone or bathroom is not related to the crime, and therefore is unlikely to be an initiation.

If you are arrested for a crime in Virginia, invoking your right to remain silent is not enough to avail yourself to the full scope of Miranda’s protections. You must also invoke your right to counsel.

How Do You Exercise the Right to Counsel?

In order to successfully invoke the right to counsel, a suspect must unambiguously request counsel. This is a higher standard than that required to invoke the right to remain silent. In this instance, mere silence will not be enough to trigger a suspect’s right to have counsel present during the interrogation. Likewise, the request for counsel must be clear. The Supreme Court addressed this standard in Davis v. United States. After an hour and half of interrogation, the suspect in Davis told the detective, “Maybe I should talk to a lawyer.” The Court held that this was not a valid invocation of the right to counsel, and that it was proper for the interrogation to continue. Thus, the request for counsel must be clear enough so that “a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” Once a suspect successfully invokes his right to counsel, the interrogation must immediately cease and the police may not re-initiate the interrogation until counsel is present.

If you are arrested for a crime in Virginia, you may be tempted to explain your actions or convince the police that you are innocent, but doing so can amount to a waiver of your Miranda rights. These constitutional guarantees against self-incrimination protect the innocent from over-zealous police and maintain the integrity of our justice system. If you have been arrested, exercise your fundamental right to counsel and contact an experienced criminal defense attorney. We can represent you during an interrogation, review the facts to see if your Miranda rights have been violated, and defend your case in court.

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