Thanks to TV shows (and numerous political scandals), most Americans are aware that they have a “right to remain silent” when taken into custody. However, many people refer incorrectly to their “Miranda rights” in doing so. In reality, it is the Fifth Amendment to the Constitution that protects our right to not speak during any criminal proceeding.
The Miranda decision (1966) merely required that law enforcement personnel administer the now familiar warning to a potential defendant that the right exists. In 2014, a court in the case of California v. Tom affirmed this:
“Accordingly, a suspect’s silence after being arrested gives rise to a much stronger inference of reliance on the Fifth Amendment privilege than a witness’s noncustodial silence even ‘in the face of official suspicions.’”
Most court decisions have held that you also have the right to remain silent before being placed in custody. However, courts have recently decided that this applies prior to arrest and/or a Miranda warning, but only if you have invoked your rights:
“In order to trigger the Fifth Amendment’s protection, the court today holds, a suspect in custody may not simply remain silent. Instead, the suspect must ‘clearly,’ ‘timely,’ and ‘unambiguously’ invoke the Fifth Amendment privilege.”
In the above case, since he did not invoke his Fifth Amendment rights, Richard Tom was attacked for what he did not say. The court upheld the right of the prosecution to use his silence against him. Specifically, Tom never asked about the condition of the injured people in the other vehicle, and prosecutors argued that his failure to show concern indicated a “callous disregard” for human life.
This is truly dangerous ground. For if both speaking and not speaking can be used against us, then we are in a “damned if we do; damned if we don’t” scenario. A veteran self-defense attorney friend of mine noted that this placed the defendant in the impossible position of being forced to speak so as to not incriminate himself.
What this all means is that it’s absolutely vital that after any confrontation in which your firearm is involved, and most especially when shots are fired, as soon as police arrive on the scene, you immediately invoke your Fifth Amendment rights. If you do, you’ll be better able to justify your silence later.
Note that you must do this immediately, even before you have been placed in custody. More than a few individuals have been lulled into a false sense of security by investigating officers because they were not initially arrested. In some cases, the officers even seemed to be sympathetic. But remember, you will likely be emotionally vulnerable, and police have a whole menu of psychological techniques at their disposal to get you to talk.
But note that merely standing there stone-faced isn’t sufficient. You must “clearly” and “unambiguously” state to police that you wish to remain silent until your attorney is present. You may want to speak with your own attorney on recommended wording, but in my carry classes, I suggest a concise “script” to use the moment police arrive. “Officer, thank God you’re here. He (they) tried to kill me. I don’t want to say anything more until my attorney is with me.” Then, keep your mouth shut until your lawyer arrives.
It may make things more complicated, and prolong your interaction with law enforcement, but remaining silent is almost always your best strategy.
