Right to Remain Silent

Right to Remain Silent

Most people are familiar with Miranda warnings from TV police procedurals and movies: you have the right to remain silent, any statement you make may be used against you, and you have the right to an attorney. In practice however, many people don’t invoke their right to silence or to an attorney. They may think that refusing to speak to police makes them look guilty, or simply wish to assist law enforcement with their investigations. Additionally, police are allowed to lie about the evidence against you, and can withhold information that, if revealed, might cause the interviewee to invoke their right to remain silent. Thus, speaking to the police without an attorney creates a very real risk that a person, even an innocent person, may unwittingly make incriminating statements to police.

The recent news coverage of the October 2021 shooting on the “Rust” film illustrates this point. Alec Baldwin, a wealthy, A-list celebrity, presumably with access to world-class lawyers, waived his Miranda rights and spoke to police without an attorney just hours after the gun he was holding discharged, killing one person, and injuring another. Baldwin’s response makes sense – he had just witnessed a terrible accident, and he wanted to help police understand what happened. For approximately one hour Baldwin spoke to police without an attorney present, describing details of the incident and on set gun protocols. He was not informed until the end of the interview that one of the victims had died. With involuntary manslaughter charges against Baldwin announced just last week, it isn’t yet clear what, if any, role Baldwin’s statement will play in the prosecutor’s case. However, the admissions he made during his police interview will likely foreclose defense strategies that may have otherwise been available to his attorneys.

So what are your rights and how do you protect them? You have a Fifth Amendment right against compulsory self-incrimination. Put simply, the government cannot force you to be a witness against yourself in a criminal case. To effectuate this right, the Supreme Court in Miranda v. Arizona mandated that, prior to any questioning, officers must warn persons in their custody that, they have a right to remain silent, that any statement made may be used as evidence against them, and that they have the right to an attorney, either retained or appointed, before and during questioning.” Miranda v. Arizona, 384 U.S. 436, 444 (1966). Miranda rights attach as soon as someone is in custody or is otherwise deprived of “freedom of action in any significant way.” A person is not required to be handcuffed or under arrest to be considered “in custody”; the question is whether they are free to leave.

Miranda rights must be affirmatively invoked. As long as the invocation is clear and unambiguous, no specific combination of words is required. Maryland courts have recognized statements such as “[t]hat’s all I have to say to you” and “I don’t want to say anything else now” as sufficiently unambiguous invocations of a defendant’s right to silence. Vargas-Salguero v. State, 237 Md. App. 317, 344 (2018). In determining whether a defendant has unambiguously invoked his or her right to counsel, “the key is whether the defendant expresses a desire to have a lawyer present for the interrogation, as opposed to mentioning the idea of having a lawyer present during the interrogation. Id. at 338 (suspect invoked right to counsel by stating in Spanish, “if you accuse me of something, I better want an attorney”) ; See Ballard, 420 Md. at 493–94, 24 A.3d 96 (suspect invoked right to counsel by stating “you mind if I not say no more and just talk to an attorney about this”); see also State v. Harris, 305 S.W.3d 482 (Mo. Ct. App. 2010) (suspect invoked right to counsel by stating “I’d rather appoint a lawyer”); McDaniel v. Commonwealth, 28 Va.App. 432, 506 S.E.2d 21 (1998) (suspect invoked right to counsel by stating “I think I would rather have an attorney here to speak for me”).

If officers fail to give Miranda warnings at all or continue to question a person after they have properly invoked their rights, the prosecution may not use any statements stemming from the interview. Id. at 336. These safeguards are necessary to protect against the “inherently compelling pressures” of custodial interrogations. Miranda, 384 U.S. at 466. After all, if Alec Baldwin, a celebrity with ample resources and power, readily waived his Miranda rights, consider how the average person feels when facing police questioning.


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