When the police take you into custody, you’re likely going to be under a lot of stress. In those moments, it can be easy to accidentally say something that the prosecutor can use against you later in your trial. That’s why it’s essential to know when not to speak, and to have an attorney present during your custodial interrogations. But the right to remain silent and the right to an attorney will do you no good unless you know how to invoke them properly.
Your Constitutional rights
The Constitution’s Fifth and Sixth Amendments grant you the right to avoid self-incrimination (which means that the police cannot force you to answer questions), and the right to have an attorney present during every step of the judicial process.
This means that you don’t have to face police questioning alone. You can have an attorney present to help you answer questions properly. Having an attorney present during questioning is also important because attorneys have training in recognizing improper or unconstitutional questioning methods or coercion and can object to them.
But neither of these rights are automatic. In other words, you have to specifically invoke them in order for them to take effect.
How to invoke them
Many people mistakenly believe that the right to remain silent means sitting in silence without responding while the police question you. But this is not exercising the full extent of your rights.
When you properly invoke your right to remain silent, the police must end the interrogation for a reasonable amount of time. If you invoke your right to an attorney, they must cease questioning you until your attorney arrives.
To invoke your right to remain silent and your right to an attorney, you must make a clear, unequivocal statement. You must say something like “I am invoking my right to remain silent,” and “I am invoking my right to have my attorney present.” The police do not have to cease interrogation if you say something vague, such as “Maybe I should have an attorney” or “I think I might want to talk to my lawyer.”
Our Constitutional rights serve an essential purpose for protecting us from police overreach and abuse. Knowing how to invoke those rights is essential and can mean the difference between success and defeat in your criminal trial.