Thanks to a startling number of references in television, books and movies, most American adults understand their basic Miranda rights, even if they are unsure of what they are called. Generally, exercising one’s “right to remain silent” is perhaps the single-most well understood response to being arrested behind calling an attorney. Unfortunately, the United States Supreme Court recently handed down a decision that limits the ability of one’s Miranda rights to have the weight and power that they once did.
Many individuals are arrested after committing no criminal wrongdoing, while others are fully aware that they have broken the law. For example, if an individual is aware that he has committed a federal drug crime, it would generally be against his best interests to answer questions posed by law enforcement until he was arrested and had retained a criminal defense attorney, correct? The Supreme Court’s decision makes the answer to this question complicated.
Generally, Miranda rights are only read to an individual and strictly applied after an arrest has been made. However, the courts have often upheld the right of individuals to remain silent during questioning pre-arrest under various circumstances. The Supreme Court’s most recent decision makes the expectation clear that if an individual fails to answer questions pre-arrest that that silence can be used against that individual should his or her case come to trial.
One’s Fifth Amendment protections against self-incrimination are complicated and nuanced. The Court’s recent ruling makes it all the more critical that individuals concerned that they have become suspects in a case retain experienced criminal defense counsel prior to arrest. The actions an individual takes prior to arrest can greatly impact the outcome of his or her case.
Source: The New York Times, “A 5-4 Ruling, One of Three, Limits Silence’s Protection,” Adam Liptak, June 17, 2013