Right to Remain Silent

In the United States, the right to remain silent is designed to protect a person who is undergoing police questioning or trial. This right may help a person avoid making self-incriminating statements. It may also include the condition that unfavorable comments or inferences cannot be made by the tribunal because the defendant refused to answer questions before or during a court trial.

The Miranda Warning is used to inform a suspect of his or her right to remain silent after being placed under arrest. This warning came into being after the United States Supreme Court case of Miranda v. Arizona. The court stated that a confession would be inadmissible under the Fifth Amendment self-incrimination clause unless the suspect was made aware of his or her rights and had thus waived them.

In stark comparison to the decision made in Miranda v. Arizona, the United States Supreme Court ruled in Raffel v. U.S. that once the suspect begins cooperating with law enforcement and answers questions or consents to a search, he or she gives up the right to remain silent and must continue to cooperate throughout his or her arrest, trial, and judgment.

This means that if you cooperate with the police in any form or fashion before being placed under arrest, you give up your Fourth and Fifth Amendment rights. Under the Raffel ruling, you cannot later reclaim your rights, even after arrest and being informed of your Miranda rights. This makes the Miranda Warning rather powerless, as the police do not have to advise the suspect of his or her rights until after a self-incriminating comment is made and/or he or she is arrested. If the suspect has already cooperated prior to arrest, he or she has already given up most of the rights that the Miranda Warning would advise him or her of.

There are some instances where remaining silent may look unfavorably upon a suspect. For example, if a person is silent before being placed under arrest, it may be inferred that he or she is guilty because there are no declarations of innocence. One way to combat this is to tell the police officer that your attorney advised you to stay silent should you ever be accused of committing a crime. Attributing your silence to your attorney’s advice looks less suspicious.

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