As a suspect or defendant in a criminal case in Pennsylvania, you have a number of fundamental legal rights. One of these rights is the right to remain silent. If the police attempt to question you in connection with an alleged crime, you do not have to answer their questions, and it is strongly in your best interests not to say anything except that you are requesting to speak with your attorney.

The right to remain silent exists under the Fifth Amendment to the U.S. Constitution, and it applies in state criminal cases under the Equal Protection Clause of the Fourteenth Amendment. The relevant language in the Fifth Amendment states: “No person shall be . . . compelled in any criminal case to be a witness against himself . . . .” If you are being accused of a crime, you do not have to answer any questions, you do not have to provide access to your phone, and you do not have to give the police any other evidence or information that the prosecutor’s office may be able to use against you.

Your Right to Remain Silent vs. The Police’s Obligation to Read Your Rights

When dealing with Fifth Amendment issues, it is important to distinguish between your right to remain silent and the police’s obligation to read your Miranda rights. While you have the right to remain silent any time you are dealing with the police (although you may be required to provide basic non-incriminating information, such as your name and address, under certain circumstances), the police are only required to read your rights prior to conducting a custodial interrogation. What it means to be in “custody” and what constitutes an “interrogation” are both broader than most people realize; and, if the police fail to read your rights prior to conducting a custodial interrogation, then any statements you provide may be inadmissible in court.

Voluntary Statements vs. Answers to Custodial Interrogations

However, regardless of whether the police have read your rights, and regardless of whether they had an obligation to do so, if you voluntarily make any statements, these statements can be used against you. This is because the Fifth Amendment only protects against “compelled” self-incrimination. If you voluntarily provide information to the police, then it does not matter whether the police have read your rights. As a result, when interacting with the police, it is absolutely imperative that you not say anything that could potentially be used against you. Once again, the best way to avoid saying something you shouldn’t have is to not say anything at all. If you are innocent, there will be a time and place to prove it, but that will come later in your case.

Interactions with the Police vs. Interactions with Others

While the right to remain silent applies when you are dealing with law enforcement, it is important not to forget that statements you make to others could potentially end up being used against you as well. Whether the police or prison guards overhear you talking to someone else, your conversation is recorded, or a witness testifies as to what he or she heard from you directly, these are all potential ways that your own words could end up being used against you. While you may be on high-alert for exercising your right to remain silent while you are interacting with the police, when you are interacting with other people, it is important not to forget that your silence could be the only thing protecting you against a conviction.

Answering Questions Before the Police Read Your Rights vs. Answering Questions After Being Mirandized

Given that statements made in response to custodial interrogations prior to being Mirandized may be inadmissible in criminal court under the Fifth Amendment, is it okay to let your guard down if the police have not read your rights? In a word, “No.” While your statements may end up being deemed inadmissible: (i) they might not be, especially if you volunteer information that is not specifically and directly in response to a question you were asked; and, (ii) in order to have inadmissible self-incriminating statements kept out of court, you will need to convince a judge that the police violated your constitutional rights.

Inadmissible statements are not automatically kept out of court, and there will often be legitimate questions as to whether or not a custodial interrogation took place. As a result, the best policy is to always keep information to yourself and not attempt to “get one over” on the police by giving them information and then hoping you will be able to prevent them from using in court.

Exercising Your Right to Remain Silent vs. Exercising Your Right to Legal Counsel

Although it is important to remain silent, it is also important not to exercise this right to the exclusion of exercising your right to legal counsel. Even when exercising your right to remain silent, you can – and should – verbally request to speak with an attorney. Your attorney will then be able to deal with the police and prosecutors on your behalf, and you will be able to tell your attorney everything without fear of your statements being used against you. Your attorney will then be able to determine what information should (and shouldn’t) be presented in court, and he or she will be able to use your statements to build a compelling case for dismissal or a “not guilty” verdict at trial.

The Fifth Amendment right to remain silent is deceptively complicated, and decades of case law have shaped the protections that apply to suspects and defendants today. If you have been approached by the police or arrested in Pennsylvania, it is important that you speak with an attorney as soon as possible.

Contact The Fishman Firm in Philadelphia, PA

For more information about exercising your right to remain silent in Pennsylvania or how to protect yourself if you have been questioned by the police, please contact us right away. To speak with Philadelphia criminal defense attorney Brian Fishman in confidence, call 267-758-2228 or tell us how to reach you online now.