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Which Right Do I Invoke, Remain Silent or Ask for a Lawyer?

Does it matter which right you invoke when the police read you your Miranda warnings? It can.

There are four basic requirements to Miranda warnings. First, they must inform the individual that he has the right to an attorney. Second, they must inform the individual that he has the right to remain silent and not answer any questions. Third, officers must inform the individual that these rights continue with the individual and can be invoked at any time during the interrogation. And fourth, law enforcement must inform the individual that his statements can be used against him later. Once an individual knowingly and voluntarily waives these rights, then the police are free to ask the person any manner of questions about a wide range of topics. (See our other entries on when law enforcement must Mirandize an individual.)

But what happens when an individual wants to use, or invoke, one of his Miranda rights? It's important to note that the rights do not afford the same protections. If one were to invoke their right to remain silent, then the police simply cannot force the person to answer the question. However, the police can move on to a different topic, leave and attempt to interrogate the individual at a later time, or use the manner in which the individual remained silent against them (better not look nervous when you say that you don't want to answer the question).

On the other hand, should an individual invoke his right to an attorney, law enforcement officers have much fewer options. First, the interrogation must stop until the individual is provided with an attorney. If law enforcement chooses not to provide the individual with an attorney (which is almost always the case), police officers cannot continue the interrogation, move on to another topic, or leave and come back at a later time to start the interrogation over. Simply put, once a person invokes their right to counsel, everything must stop until an attorney is provided.

However, even this right has its limitations. The most significant of which is that an individual must clearly and unequivocally invoke his right to an attorney. An individual cannot say, "should I have an attorney for this?" or "I'm thinking about whether I want to have an attorney before I answer any more questions" and then expect police to stop the interrogation. Rather, the person must clearly and definitively say, "I want an attorney before we speak further."

If you have been approached by the police, do not delay in contacting the experienced defense attorneys at Keffer Barnhart LLP. Do not speak to the police before you speak with an attorney at Keffer Barnhart LLP. Call us today at 1-800-NOT GUILTY or (317) 857-0160.