If ever you have the misfortune to be arrested, remember this: The Fifth Amendment guarantees that no one may be “compelled in any criminal case to be a witness against himself.” Everyone has the right against forced confessions and self-incrimination. The courts developed “Miranda warnings” to ensure that suspects in custody know this right before speaking to the police.

“You have the right to remain silent; anything you say can and will be used against you in a court of law; you have the right to speak to an attorney before and during any questioning and to have your attorney present during questioning; if you cannot afford an attorney, one will be provided for you at no cost to you.” This is the typical formula with which police must advise in-custody suspects before asking incriminating questions.

Whether or not Miranda warnings are given, the accused always has the right against self-incrimination. No one is ever required to answer incriminating questions.

Police interrogation is intended to elicit a confession. Interrogators often tell a suspect that they already know what happened, whether via a co-suspect’s confession, eyewitness statements, videotape, or other means. They tell the suspect that the interrogation represents the sole opportunity to tell his side of the story. Police may use misinformation to obtain confessions.

If you are given Miranda warnings, incriminating questions are coming. Invoke your rights by saying that you wish to remain silent AND that you want to talk to a lawyer.

It is important to invoke using this dual formula. Police must act differently depending on how the accused invokes. Merely stating the desire to remain silent requires police to stop questioning on the specific topic under consideration, but once a suspect asks to talk to a lawyer, all questioning must cease.

That rule was once absolute, but a recent Supreme Court decision now allows police to resume questioning after a significant time period has elapsed. The Court defined that significant time period as two weeks.

Thus, questioning may resume two weeks after a suspect tells police interrogators that he wants to talk to an attorney.

This highlights that it is the individual’s responsibility to safeguard his rights. Remember that you always have the right to remain silent and to avoid self-incrimination. Say that you want to remain silent and that you want to talk to a lawyer. Say nothing more.

This article continues the discussion on civil rights afforded by the United States Constitution.

Naresh Rajan is an attorney in San Mateo County. Email nrajanlaw@gmail.com

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