The protections enshrined in the ubiquitous words of the Miranda rights are meant to protect your right against self-incrimination. However, these rights are not self-executing, and require affirmative invocation in order to be effective. The need for invocation is particularly important regarding the right to remain silent.
Break your Silence to be Silent
In order to invoke your right to silence, you must affirmatively invoke that right. Following the decision of Berghuis v. Thompkins The Supreme Court in a 5-4 judgment has held that to invoke your right to remain silent, you must affirmatively invoke that right. If you fail to affirmatively invoke your right to silence but remain silent, that silence may be used against you to show that you had knowledge of your right to remain silent.
The need to affirmatively invoke your right to remain silent less your silence be used against you is necessary to protect against a waiver of your Miranda rights. A waiver of your Miranda rights must be “Knowing” and “Voluntary”. Mere Silence is not enough to constitute a waiver of your Miranda rights. However, failing to invoke your right to remain silent but remaining silent may be used to show that you knowingly waived the right to silence if you later speak to police.
Once one has invoke the right to silence, police must cease questioning immediately. However, invoking your right to silence does not mean that police cannot question you again. Police may reinitiate questioning after you have invoked your right to silence, so long as they avoid “badgering” the defendant.
If you find yourself in a situation in which law enforcement officers are reading your Miranda rights to you, make sure to state affirmatively that you are invoking your right to remain silent. Once you have invoked, do not speak to officers. There is no reason to not invoke your right to silence, and there is every reason to invoke your right to silence. Make sure to vocally express your right to silence, to legally protect your silence. After you have invoked your right to silence, request your lawyer.
Written by Hunter White
 Davis v. United States, 512 U.S. 452, 114 S. Ct. 2350 (1994)
 Berghuis v. Thompkins, 560 U.S. 370, 130 S. Ct. 2250 (2010)
 North Carolina v. Butler, 441 U.S. 369, 99 S. Ct. 1755 (1979)
 Miranda v. Ariz., 384 U.S. 436, 86 S. Ct. 1602 (1966)
 Edwards v. Ariz., 451 U.S. 477, 101 S. Ct. 1880 (1981)
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