How To Properly Invoke Your Right To Remain Silent, And Why It Matters

If you’ve read other posts on this blog you already know you shouldn’t talk to the police. However, this basic point requires a little more expansion.

Did you know, for example, that it’s possible to waive this right by accident, even after invoking it? Or the different ways seemingly harmless comments could be used against you in court?

We don’t want you to make these mistakes. That’s why we wanted to take a deeper delve into this right.

First, how to do it.

You’ll want to give some basic information to the police if you are arrested.

  • Your name.
  • Your address.
  • Whether you have medical conditions or needs.
  • Whether you need to use the restroom.

The only other thing you say, besides those things, is “I’m invoking my right to remain silent, and I’m invoking my right to an attorney.”

Do not, after saying those things, give information to the police. If you start talking after invoking your right to remain silent you’ve just waived it.

You have to be prepared, because the police have all sorts of tricks designed to make you want to talk to them. Save your need to tell your side of the story for your consultation with your attorney.

Keep in mind being arrested is not the only time you might want to remain silent. What looks like an informal Q&A session that makes you out to be a witness could in fact be a precursor to building a case against you.

If you feel like you know something that could really help bring a dangerous person to justice, be sure to consult with, and retain, an attorney who can counsel you on this, and who can be present during any interviews.

Your right to remain silent is a constitutional right.

The Miranda warning doesn’t give you the right to remain silent, or the right to counsel. Both are guaranteed by the constitution. The right to remain silent in particular is your 5th Amendment right in action. The law cannot compel you to incriminate yourself.

What stops more people from exercising this right? A myth that says only guilty people use it. But you should use it. “Self-incrimination” can happen even to the innocent.

Nothing you say can help you.

You can’t convince the cops not to arrest you, charge you, or hold you. Any evidence that might clear your name is best told to your lawyer, who can determine the best way to use it on your behalf.

The videos below are great ones to watch if you’ve got the time. It’s a presentation from a former criminal defense attorney and a former police officer to a group of law students.


Too long, didn’t watch? Here are a few key points to keep in mind.

  • Anything you say to the police can be used against you in a court of law, but thanks to the way in which the rules of evidence work,  nothing you say can be used to help you.
  • Psychologically, people have a tendency to throw small, inconsequential lies in with honest truth. Or they misremember things. You are not superhuman, so one of the two will probably happen to you if you start trying to talk. Either way, handing the prosecution an ability to prove you’re a “liar” doesn’t tend to go well for you.
  • True, but seemingly harmless statements can still be twisted into a new narrative that works against you.
  • With over 10,000 Federal laws on the books, on some level every one of us is a criminal. If they don’t get you for what they want to get you for, running your mouth could hand them the key to convicting you for something else. Remember, law enforcement likes to layer charge after charge on a single defendant, hoping to make sure something sticks.

Real life isn’t Law and Order. Often, the prosecutors are not, in fact, handed a case where the police have diligently left no stone unturned. Sometimes, a few key incriminating statements and a damning testimony or two is all they need to get a conviction, and so that’s as far as the investigation tends to go.

If you don’t make any incriminating statements they may not have much of a case. Your lawyer may even be able to get your charges dropped before you ever have to worry about striking a plea bargain or going to trial.

Not a bad benefit, for the low, low price of simply refusing to speak!

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About The Author

Jeffery Greco

Jeffery Greco is an attorney providing legal services covering Criminal Defense and Criminal Defense: White Collar and Criminal Defense: DUI / DWI. Jeffery Greco, who practices law in New York, New York, was selected to Super Lawyers for 2020 - 2023. This peer designation is awarded only to a select number of accomplished attorneys in each state. The Super Lawyers selection process takes into account peer recognition, professional achievement in legal practice, and other cogent factors. Prior to becoming an attorney, he studied at South Texas College of Law Houston. He graduated in 2004. After passing the bar exam, he was admitted to legal practice in 2005.

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