| Read Time: < 1 minute | Criminal Justice

“You have the right to remain silent.” While not all Americans understand that this sentence is the beginning of one’s Miranda rights, nearly all adult Americans understand that this right exists. Popular movies and television programs have taught the public that when you are arrested, you can refuse to speak to law enforcement until you have an attorney present.

This right is critical to ensuring that one’s criminal defense is the subject of just and proper due process. Unfortunately, there are exceptions to this right and related rights that can bite an accused person if he or she is not careful. Currently, the United States Supreme Court is considering arguments related to one potential “right to remain silent” exception.

In many cases, prosecutors seek to use a person’s silence against him or her in court, whether or not that person ultimately takes the stand. The Supreme Court has upheld prosecutorial discretion to use invocation of silence against an accused person if he or she takes the stand. But the question of whether or not prosecutors may do so if the accused does not take the stand remains unsettled.

After a person’s Miranda rights are read, generally prosecutors cannot use invocation of this right against an individual. However, if a person refuses to answer questions before he or she has been arrested and read these rights, a right to remain silent may or may not exist.

When the Supreme Court rules on this issue, lower courts will be able to enforce a consistent approach. Until then, accused persons will continue to be treated differently in varied jurisdictions.

Source: ABA Journal, “Court weighs whether a prosecutor can use a defendant’s refusal to answer a question,” Mark Walsh, Apr. 1, 2013

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Andrew Moses

Andrew has been practicing criminal law his entire career. After graduating from law school he began working as an Assistant State Attorney prosecuting cases in Orange and Osceola Counties. During his time as an Assistant State Attorney, Andrew handled all types of cases ranging from misdemeanors to such serious felonies as drug trafficking and armed robbery. His experience as a prosecutor helped him gain perspective of the criminal justice system and how the government established its cases.

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