What Does the Right To Remain Silent Really Mean?

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What Does the Right To Remain Silent Really Mean?

Posted On : Nov-28-2011 | seen (285) times | Article Word Count : 708 |

It is crucial that a suspect in a criminal case or any witness giving testimony understands the right to remain silent, also known as the privilege against self-incrimination, as it is one of the most important Constitutional rights.

The Fifth Amendment to the Federal Constitution provides that “No person…shall be compelled in any Criminal Case to be a witness against himself.” The language in the California Constitution is practically identical.

From its origin in common law, handed down to us from the British, the privilege was intended to prevent arbitrary inquisition without charges being brought, and meant that one should not be forced to accuse himself. This protection is almost universally applied to protect a person who is accused or who may become accused by guaranteeing two privileges:

1. Defendant’s (or accused) privilege—the defendant in a criminal case need not testify at all; and

2. Witness’s privilege—a witness in any proceeding, civil, criminal, or administrative, need not answer any question or provided any documents that would tend to subject the witness to a criminal prosecution.

The privilege protects persons, not corporations or unincorporated associations. It protects against both compulsory oral testimony and the production of documents or personal property. Finally, no negative comments may be made and no adverse inferences may be drawn about the person invoking his or right to remain silent,

Some have argued that in the modern judicial system there is no need for such protection, as our system has other ways of protecting rights of the individual, such as a public jury trial conducted by a judge, the right to legal representation, and the right to appeal a conviction.

However, most authorities consistently uphold the right to remain silent, dictating that our sense of fair play and the protection against the possible abuses by the government demand that the protection be preserved. The United States Supreme Court declared that the privilege against self-incrimination “reflects our fundamental values and most noble aspirations; …our respect for the inviolability of the human personality and the right of each individual to a private enclave where he may lead a private life,…our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes ‘a shelter to the guilty,’ is often ‘a protection to the innocent.’” Murphy v. Waterfront Com. 1964) 378 U.S. 52

The privilege against self-incrimination attaches at the time of arrest or other custodial restraint of the individual.
How often have we heard the command by the senior arresting officer, “Read him his rights?” This legal protection was created by the well-known case of Miranda v. Arizona (1966) 384 U.S. 436, and three lesser-known U.S. Supreme Court cases, all decided at the same time. Additional constitutional requirements for custodial police interrogation dictate that the suspect not only must be informed of the right to remain silent, but also be warned that anything said can be used against him or her in court, advised of the right to have an attorney present during questioning, and that an attorney may be provided at no cost. Further, all interrogation must cease if the suspect indicates that he or she wishes to remain silent.

These constitutional mandates have been undermined by subsequent judicial interpretations.

Now questioning does not have to cease if the suspect indicates that he or she wishes to remain silent. Only if the suspect demands that an attorney be present must the interrogation terminate. Additionally, statements obtained in violation of the Miranda rules may be used to attack the credibility of the defendant if he or she chooses to testify at trial.

The soundest advice that an attorney can give his or her client is to remain silent and demand that the attorney be present during questioning.

This will prevent the police from extracting involuntary statements and from using the power of law enforcement from pressuring the suspect to self-incriminate. Most police, at every turn, aggressively resist all efforts to require that statements taken from suspects be video recorded. Obviously, the risk of misinterpretations of the suspect’s statements, and even fabrication of statements attributed to the defendant would be eliminated if all interrogations were recorded. So it is crucial to remain silent during any contact with the police, and demand that your lawyer be present during questioning.

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<h1>What Does the Right To Remain Silent Really Mean?</h1> Author: <a href='http://www.articleseen.com/profile_Kellenberger.aspx'>Kellenberger</a> The Fifth Amendment to the Federal Constitution provides that “No person…shall be compelled in any Criminal Case to be a witness against himself.” The language in the California Constitution is practically identical.
 
From its origin in common law, handed down to us from the British, the privilege was intended to prevent arbitrary inquisition without charges being brought, and meant that one should not be forced to accuse himself. This protection is almost universally applied to protect a person who is accused or who may become accused by guaranteeing two privileges:

1.	  Defendant’s (or accused) privilege—the defendant in a criminal case need not testify at all; and

2.	Witness’s privilege—a witness in any proceeding, civil, criminal, or administrative, need not answer any question or provided any documents that would tend to subject the witness to a criminal prosecution.

The privilege protects persons, not corporations or unincorporated associations.  It protects against both compulsory oral testimony and the production of documents or personal property.  Finally, no negative comments may be made and no adverse inferences may be drawn about the person invoking his or right to remain silent,

Some have argued that in the modern judicial system there is no need for such protection, as our system has other ways of protecting rights of the individual, such as a public jury trial conducted by a judge, the right to legal representation, and the right to appeal a conviction.

However, most authorities consistently uphold the right to remain silent, dictating that our sense of fair play and the protection against the possible abuses by the government demand that the protection be preserved.  The United States Supreme Court declared that the privilege against self-incrimination “reflects our fundamental values and most noble aspirations; …our respect for the inviolability of the human personality and the right of each individual to a private enclave where he may lead a private life,…our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes ‘a shelter to the guilty,’ is often ‘a protection to the innocent.’”  Murphy v. Waterfront Com. 1964) 378 U.S. 52

The privilege against self-incrimination attaches at the time of arrest or other custodial restraint of the individual.  
How often have we heard the command by the senior arresting officer, “Read him his rights?”  This legal protection was created by the well-known case of Miranda v. Arizona (1966) 384 U.S. 436, and three lesser-known U.S. Supreme Court cases, all decided at the same time.  Additional constitutional requirements for custodial police interrogation dictate that the suspect not only must be informed of the right to remain silent, but also be warned that anything said can be used against him or her in court, advised of the right to have an attorney present during questioning, and that an attorney may be provided at no cost.  Further, all interrogation must cease if the suspect indicates that he or she wishes to remain silent.

These constitutional mandates have been undermined by subsequent judicial interpretations.

Now questioning does not have to cease if the suspect indicates that he or she wishes to remain silent.  Only if the suspect demands that an attorney be present must the interrogation terminate.  Additionally, statements obtained in violation of the Miranda rules may be used to attack the credibility of the defendant if he or she chooses to testify at trial.

The soundest advice that an attorney can give his or her client is to remain silent and demand that the attorney be present during questioning.

This will prevent the police from extracting involuntary statements and from using the power of law enforcement from pressuring the suspect to self-incriminate. Most police, at every turn, aggressively resist all efforts to require that statements taken from suspects be video recorded. Obviously, the risk of misinterpretations of the suspect’s statements, and even fabrication of statements attributed to the defendant would be eliminated if all interrogations were recorded. So it is crucial to remain silent during any contact with the police, and demand that your lawyer be present during questioning.
About the Author: James W. Kellenberger is <a rel="nofollow" href="http://www.kellenbergerlaw.com/contact.html">San Jose Criminal Lawyer</a> and <a rel="nofollow" href="http://www.kellenbergerlaw.com/persInjury.html">Personal Injury Lawyer San Jose</a> recognized as one of the best lawyers in Northern California providing professional, ethical, and outstanding representation in the fields of: Criminal Defense, Personal Injury, Juvenile Law, DUI Defense,
Small Business Law, and Estate Planning. For more information please visit Article Source: <a href='http://www.articleseen.com/Article_What-Does-the-Right-To-Remain-Silent-Really-Mean_110807.aspx'> http://www.articleseen.com/Article_What Does the Right To Remain Silent Really Mean?_110807.aspx</a>

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James W. Kellenberger is San Jose Criminal Lawyer and Personal Injury Lawyer San Jose recognized as one of the best lawyers in Northern California providing professional, ethical, and outstanding representation in the fields of: Criminal Defense, Personal Injury, Juvenile Law, DUI Defense,
Small Business Law, and Estate Planning. For more information please visit

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