You Have the Right to Remain Silent. Sometimes.

Clients often ask our criminal defense attorneys if their criminal charges can be dismissed due to the police’s failure to inform them of their right to silence upon arrest. We all hear about Miranda rights on television, right? This Fifth Amendment right in the U.S. Constitution safeguards individuals from self-incrimination. It applies to all criminal cases here in Michigan. It’s crucial to understand that this right is not as commonly invoked by criminal defendants as it should be. In Michigan, as in other states, for a statement made¬†during police custody¬†to be admissible in court, the prosecution must demonstrate that the defendant ‚Äúknowingly, voluntarily, and intelligently‚ÄĚ waived their Fifth Amendment right with full awareness and comprehension. An important part of this is that the statement must have occurred while a person is in custody.¬†

Understanding when the right to silence becomes effective is key in any criminal matter. A common misconception is that it applies immediately upon arrest. However, the right against self-incrimination under the Fifth Amendment is specifically relevant when an individual is in custody and undergoing police interrogation. Criminal defense attorneys refer to this as custodial interrogation. Here in Michigan, if you waive this right and voluntarily communicate with law enforcement, your statements can be utilized in court.

Two critical elements define the application of the Fifth Amendment: custody and interrogation. Being ‘in custody’ means you weren’t free to leave, which is determined by the specifics of each case. When challenging a Fifth Amendment violation in court, the defense attorney typically questions whether the defendant was free to leave or free to terminate the encounter during the police questioning.

The second element, ‘interrogation,’ goes beyond mere preliminary queries. For instance, police asking someone if they possess weapons or anything illegal during a routine stop is not seen as an interrogation. Such preliminary questions are for officer safety and do not require advisement of Fifth Amendment Miranda rights. However, during a DUI stop, if a defendant admits to possessing a weapon without being informed of their rights, this admission may not be protected by the Fifth Amendment.

The government must prove that the individual was adequately informed of their rights in order for a statement to be used in court in Michigan. This typically includes the right to remain silent, the potential use of any statements against them in court, the right to an attorney, and the provision of an attorney if they cannot afford one. While a written waiver isn’t necessary for the admissibility of a statement, it is often preferred. In cases where these rights weren’t properly explained to a person in custody, the court might block the use of those statements during trial.

It is important always to exercise your right to remain silent when questioned by police. Quickly and repeatedly tell the police that you decline to answer any questions (other than identification) without your lawyer being present. Explained more briefly, LAWYER UP! There’s no obligation to cooperate during a criminal investigation; speaking to law enforcement can often be detrimental to a defendant’s case. Hundreds of times over the decades, we’ve seen people go to prison based on things they’ve told to the police. Shut up. Lawyer up and call our top-rated criminal defense team at 866-766-5245. 

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