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Home / Criminal Defense  / THE RIGHT TO REMAIN SILENT


Georgia Criminal Defense Blog, September 2016
Marco A. Corales, CORALES & WOODY, LLC

The Right to Remain Silent

If you have ever seen an episode of a television crime-drama such as “Law & Order,” you have heard the phrase “you have the right to remain silent.”  Unlike a lot of what you see on TV, this actually holds true in the real world.  You do have the right to remain silent.  However, the right is not as straightforward as you might guess.

What is the Right to Remain Silent?

In Miranda v. Arizona, the United States Supreme Court required that officers inform an arrested individual of their rights when arrested.  Thus, this became known as the “Miranda Warning.” Along with the individual’s right to remain silent, the warning informed them of their right to counsel and that any statements can be used against them in court.

Miranda warnings are usually given when a person has been arrested.  The law states that a Miranda warning is only required when an individual is in custody and being interrogated.  In order to meet the custody requirement, the individual must not feel free to leave.  In order to be considered an ‘interrogation’, the officers must not only ask questions but use words that they know will elicit an incriminating response.

How Do You Invoke the Right to Remain Silent?

The right to remain silent does not mean that an individual cannot and should not speak at all. In a 2010 Supreme Court decision, Berghuis v. Thompkins, the Court determined that if an individual does not say anything in response to the Miranda warning, the right to remain silent has not been invoked.  Additionally, officers can continue to talk, ask questions, and try to get an incriminating statement from the individual.  If the individual decides to talk, it can be used against them.

In order to invoke the right to remain silent one must make an affirmative statement.  This means that the suspect must say that they want to remain silent.  The statement cannot be a question or be stated in an apprehensive way.  Even if you decide not to invoke your right immediately, you can still stop questioning by affirmatively stating that you will no longer answer any more questions.


The lesson here is to not be afraid to assert your rights, particularly your right to remain silent. When asserting this right, do so clearly and affirmatively. Then, take advantage of your opportunity to retain counsel and call Corales & Woody immediately to discuss your defense strategy.


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