“You have the right to remain silent. Anything you say can and will be used against you in a court of law.” While most people know this phrase from TV crime dramas, it reflects a fundamental right to defendants in real-life criminal cases. This portion of the Miranda warning is rooted in the Fifth Amendment to the U.S. Constitution, and, if you have been arrested for a crime in Alaska, hearing the warning read to you in person may have seemed pretty surreal.
But, you can rest assured that your situation is very real. If you have a criminal charge pending in the Alaska courts, you need to do everything you possibly can to protect yourself against a conviction and a harsh sentence. This starts with exercising your right to remain silent.
What is the Right to Remain Silent?
The right to remain silent is a constitutional right afforded to individuals who have been accused of engaging in criminal activity. As a criminal suspect or defendant, the right to remain silent allows you to refuse to answer any police questions that relate to your criminal case. As noted above, the right comes from the Fifth Amendment to the U.S. Constitution, which states:
“No person shall . . . be compelled in any criminal case to be a witness against himself [or herself], nor be deprived of life, liberty, or property, without due process of law . . . .”
The right to remain silent is also known as the privilege against self-incrimination. This is actually a more accurate description because you technically do not have the right to remain completely silent—nor do you want to. You must provide your name and address to the police if asked (this is not considered incriminating information). You should speak to exercise the privilege against self-incrimination and your right to counsel.
When Can You Exercise Your Right to Remain Silent?
You can exercise your right to remain silent any time you are interacting with the police. If you have any reason to be concerned that you may be at risk of being placed under arrest, you do not have to say anything that the police can use to justify taking you into custody.
Importantly, however, the police do not have to inform you of your right to remain silent until they conduct a “custodial interrogation.” As a result, if you blurt out a confession before the police read your Miranda rights, this does not mean that you will get a free pass. But, if you make a self-incriminating statement while being interrogated in custody and without having been read your rights, then this might provide your criminal defense attorney with an opportunity to argue that your statement should be suppressed from your trial.
How Do You Exercise Your Right to Remain Silent?
To exercise your right to remain silent, you can say to the police that you are exercising your privilege against self-incrimination. At this point, you should also say that you are exercising your right to counsel and request to speak with an attorney. Once you state that you are exercising your rights, you do not have to say anything—even if the police continue to ask you questions without your attorney present.
Once you hire an attorney, your attorney can communicate with the police on your behalf, and the attorney-client privilege will protect anything you discuss with your attorney. This means that you can speak openly with your attorney, and anything you tell your attorney does not have to be disclosed to the police or the prosecutor's office.
What if You Fail to Exercise Your Right to Remain Silent?
What if you made a mistake and talked to the police? What if you got nervous and admitted to committing a crime, or what if the police talked you into saying something that you did not realize was incriminating? In any of these scenarios, whether the prosecutor's office can use your statements against you depends on (i) whether the police were required to read the Miranda warning; and (ii) if so, whether they read you the Miranda warning on time.
As we mentioned above, the police must read the Miranda warning before conducting a “custodial interrogation.” If you are not in custody (i.e., under the circumstances, you should understand that you are reasonably free to leave) or not being interrogated (i.e., you make an unsolicited statement voluntarily), then the Miranda rules do not apply. So, if you make a self-incriminating statement under either of these circumstances, it can generally be used against you.
If the police read the Miranda warning, and then you confess, your confession can be used against you in this situation as well. Here, you have been informed of your rights, and your voluntary confession amounts to a “waiver” of your right to remain silent. However, if the police fail to read the Miranda warning before conducting a custodial interrogation and you confess while being interrogated. It is possible that your attorney could assert a violation of your constitutional right to remain silent.
Should You Testify in Your Own Defense at Trial?
The privilege against self-incrimination also means that you must not take the witness stand at your Alaska criminal trial. But, even if you are not required to testify, should you testify? If you don't, will this make you look guilty in the eyes of the jurors?
These are not easy questions to answer, and each case is different. To decide whether you should testify (and risk facing cross-examination from the prosecution), you will need to work closely with your Alaska criminal defense lawyer.
Request a Free Consultation with Alaska Criminal Lawyer Eric Derleth
If you have been arrested in Anchorage, Soldotna, or any surrounding areas, we encourage you to contact us for a free initial consultation promptly. To discuss your case with Anchorage criminal lawyer Eric Derleth in confidence, call 907-262-9164 now.