Everyone has watched the television show where someone gets arrested and the first thing the officers say is "you have the right to remain silent." However, more and more, the cases that fashion and shape the interpretation of your right to remain silent pick and strip away at it making it harder to protect your right. The question now is- Do you really have the right to remain silent? Here I am going to discuss why I raise the question, and I bet you will be very surprised to learn many things such as the current state of the law following Salinas v. Texas from the United States Supreme Court sets out that your silence can be used against you unless you actually say you want to remain silent.
The Salinas case sets up a problem with the classic scenario. An officer calls you and says he is investigating a case, and just has a few questions to ask you- can you come down to the station and talk with him. Later, after you've given the police all the information they needed to charge you and likely convict you, you'll be in the office saying "but they didn't read me my Miranda rights." Ah yes, see the police started their use of the law against you from the start my friend. You weren't in custody, and you drove yourself to the police station on your own accord, so they now can argue that you weren't entitled to Miranda rights. Miranda rights are only read to you during "custodial interrogations." Never mind that once you got there, in the police station, you were surrounded by men with guns, badges, and great attitudes towards "law breakers." You were "free to leave" at anytime, and you knew that right? So no one read you "your rights" and I bet you didn't say "I want to invoke my right to remain silent." Well, the current state of things allows the use of your pre arrest, pre Miranda (rights), to be used against you now. This is truly unbelievable because they didn't have to tell you that you had the right in the first place, but your supposed to know to say you want to remain silent, and that if you don't invoke, even your silence can be used against you!
Wait wait wait you say- you thought all of us lawyers are always saying not to talk or say anything except "I want a lawyer." Ah the good ole' days. Well Sorry, the good old Supreme Court says you have to say "I want to remain silent" or the prosecutor can tell the jury you were silent because your were guilty. You are probably thinking NO WAY! Yes way. Recently I wrote a brief for an appeal in the United States Court of Appeals for the 6th Circuit that involved a Defendant that actually wrote to an investigator that he declined to be interviewed. Ultimately the prosecutor used his silence against him, and the Court of Appeals in oral argument questioned whether his words of "respectfully, I decline to be interviewed" was enough invoke the right to remain silent pre arrest. In my opinion, if the Courts are going to make a person have to invoke a right, then it should be easy to invoke and the language that invokes the right should be broad. Ultimately, the Court avoided the ultimate question and decided the case without telling us where the line is drawn. Which leaves us, especially in the face of questions from the bench about whether that note was enough to raise your right, in a world where you basically need to say "I am invoking my right to remain silent" and "I want my lawyer" as soon as an officer says "hi" on the phone (or at your car, home,etc) lest you be in court and the prosecutor says "see he didn't talk--GUILTY."
Luckily, where I am locally, we don't have prosecutors that do this sort of thing. However, it happens in Kentucky- the appeals case I worked on originated in the Eastern District of Kentucky. But, that doesn't mean you should let your guard down. Many will say the easy solution is "don't break the law" and for the most part that is true. However, our system is set up where innocent people get charged with crimes, and even take a plea because they don't want to risk going to trial. When the government can also in that trial say you were silent, you must be guilty, it only makes that problem worse.
Oddly, almost no one seems to remember the words from the TV shows when encountering law enforcement no matter how many times they have charged with crimes, and even more oddly, they can't believe that they didn't outsmart the police this time. Hopefully, after reading this, you will understand that you shouldn't talk with an investigator prior to securing a lawyer, and that you should also say those magic words "I am invoking my right to remain silent." Your lawyer will counsel you on the case, and whether you should, or shouldn't cooperate with investigators depending on the circumstances. The deck is stacked against you; never defend yourself without counsel.