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When invoking the right to silence, be clear about it

Few things are as scary as the first time you are arrested by the police. The average Massachusetts resident has never dealt with this situation. When it does happen, it’s often unexpected – maybe stemming from a police stop for some suspected traffic violation. That only serves to disorient you more.

Police have a legal obligation to inform you of your Miranda rights when they take you into custody. If you’ve ever watched a cop show on television, you know the line. “You have the right to remain silent. Anything you say can and will be used against you in court. You have a right to an attorney before any questioning. If you can’t afford an attorney, one will be appointed for you.” You can waive your rights. Indeed, if you aren’t careful, you could find them waived without you knowing.

How Miranda rights can be waived

Intent is a very important word in exercising your rights. It is common legal knowledge that once the Miranda warning has been issued and suspects indicate they understand those rights, they can keep quiet. Police don’t have to stop asking questions, but you don’t have to answer. In the eyes of the court, though, you have not necessarily invoked your right to remain silent.

To do that, you have to be very clear by saying something like, “I invoke my Miranda right to remain silent.” Any less direct comment, such as, “Maybe I should …” or “I plan to …,” is ambiguous and could leave you exposed.

Once you have made your intention clear, your rights could be waived in one of two ways – explicitly, by you signing a waiver document, or implicitly. The latter might occur if you behave in a way police interpret to be a waiver. All it might take is for you to provide a yes or no answer to one question after staying silent during hours of previous police interrogation.

The take-away here is that your rights are not a given. They must be properly invoked and maintained. To do that and protect your rights, it’s best to consult an experienced attorney.

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