Invoking Your Right to Remain Silent

Many people believe if they’re arrested by the police, they can just remain silent and that won’t be used against you at a trial. Imagine Ray Liotta as Henry Hill in Goodfellas when he’s arrested on drug charges and the police are investigating him. He just doesn’t say anything. Unfortunately, movies and television may mislead us when it comes to our Fifth Amendment right to remain silent. The reality is your silence can be used against you in some cases. See Salinas v. Texas, 570 U.S. 178 (2013). In Salinas, the police suspected the defendant of a murder and asked if the defendant would provide his shotgun for a ballistics examination with bullets found at the scene. Id. at 182. When police asked if the bullets would match with the gun, the defendant did not answer but instead looked at the ground. Id. At trial, the defendant’s silence and look towards the ground was used against him. Id. at 183. When the defendant argued that using his silence at trial violated his Fifth Amendment right to remain silent, the Supreme Court held that, under the circumstances, the defendant had to invoke his Fifth Amendment right to remain silent. Id. at 186. This means if the police are questioning you, whether you are under arrest or not, and you do not want to answer, you shouldn’t just remain silent. Instead, you should say something like “I am declining to answer based on my Fifth Amendment right to remain silent.” This will protect you if the district attorney tries to use your silence against you.

What about asking for an attorney?

The same concept applies when a suspect requests to speak with an attorney. When being interrogated, you must say you wish to speak with an attorney, and you have to say it unambiguously. See Smith v. Illinois, 469 U.S. 91 (1984). To put things in context, in a recent Louisiana Supreme Court case, the defendant asked for “a lawyer dog.” The Louisiana Supreme Court held he did not unambiguously invoke his right to an attorney. See Tom Jackman, The suspect told police ‘give me a lawyer dog.’ The court says he wasn’t asking for a lawyer. The Washington Post (Nov. 2, 2017), https://www.washingtonpost.com/news/true-crime/wp/2017/11/02/the-suspect-told-police-give-me-a-lawyer-dog-the-court-says-he-wasnt-asking-for-a-lawyer/.

Although if you are in custody the public defender will be assigned to your case if you remain in custody and do not hire a private attorney, see C.R.S. § 21-1-103(2), no attorney will be provided for while the police are investigating a case against you. Instead, you must unambiguously request an attorney. However, once you invoke your right to an attorney, all police questioning should stop. See Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).

So, when police are interrogating (questioning) you about a crime, the smart thing is to unambiguously invoke your Sixth Amendment right to be represented by an attorney. This is as simple as saying “Before answering any questions, I would like to speak with an attorney.”

But won’t cooperating with the police help my case?

Maybe in some cases, but for the vast majority, the police are not the ones you want to tell your story to. The police will take what you say and portray it in a light that makes you look guilty. That’s their job. You should tell your story to your attorney, whose job it is to portray your story in the best possible light, and invoke your right to remain silent and right to an attorney when the police question you. Remember, you can always cooperate later if your attorney determines that that is the best outcome for your case.