Individuals sometimes forget their “right to remain silent”

Most Americans know their Miranda rights by heart – simply from years of watching the Law & Order franchise and other TV shows and movies. When you’re the one being pulled over or stopped by police, however, don’t expect to remember them.

The “right to remain silent” isn’t usually the first thing on someone’s mind when they’re navigating the stress of an arrest. Can what you say be used against you during a stop? It depends.

When do you have to be read your rights?

Contrary to popular belief, police don’t have to recite a person’s Miranda rights to them as they arrest them – even though that’s commonly when officers do it. Even if an officer arrests you, drives you to the local jail and puts you in a holding cell, you still don’t have to be read your rights if you haven’t been questioned at any point after being taken into custody.

It’s only before a “custodial interrogation” begins that you must be informed of your rights. If you’re called into a room and officers start to question you, they need to “Mirandize” you or anything you tell them during the interrogation could be inadmissible as evidence. Most officers don’t make the mistake of failing to Mirandize people, but it happens.

Asserting your right to remain silent

If you decide to play it safe and exercise this right at the beginning of a police encounter, you’re still required to provide identification or give your name when asked and appropriate documentation if you’re stopped while driving, like your driver’s license, vehicle registration and proof of insurance.

When you invoke your right to remain silent, tell the officer that’s what you’re doing. Don’t just sit there silently. Be firm but respectful. Any questioning should end. If you hedge or answer some questions but not others – especially after being Mirandized — it could be interpreted as waiving your right to remain silent. You don’t want to risk doing that.

That’s a lot to remember at a stressful time. The most important takeaways are to know how to invoke and maintain your right to silence and to exercise your right to legal counsel immediately if you’re charged with a crime. That way, even if you forget to invoke your right to remain silent, you can have someone by your side who is acting in your best interests and working to protect your rights as you’re being questioned.