Understanding the Right to Remain Silent in Illinois

Do police officers have to tell you, “You have the right to remain silent. Anything you say can and will be used against you in a court of law?” This is a common question that clients ask us after they’ve been arrested and charged with a crime. They ask us whether their case can be dismissed because the police failed to read them their Miranda rights.

The right to remain silent is a product of the 5th Amendment to the United States Constitution. It protects citizens from incriminating themselves. In other words, you cannot be forced to testify against yourself. You can remain silent. Your Miranda rights are important because during a custodial interrogation, police have to prove that you voluntarily waived your 5th Amendment right to remain silent.

When does the right to remain silent “kick in”? 

Many individuals mistakenly believe that you can assert your 5th Amendment right to remain silent as soon as you are arrested. But that’s not always true. The 5th Amendment only applies to situations in which the defendant is in custody and being questioned by police. If you waive your 5th Amendment right to remain silent, anything you say “can and will be used against you in a court of law.”

The 5th Amendment applies to specific situations under the law. There are two elements that must be satisfied in order for the 5th Amendment to kick in. Those are:

• You are in custody – For the 5th Amendment to apply, you must be in custody. Whether or not you were in custody depends on specific factors related to your case. Generally, you are in custody if you are not free to leave. That’s why it’s important to ask, “Am I being detained?” Once detained, certain rights kick in. A defense attorney will often ask a police officer whether or not their client was free to leave when the officer began questioning them.

• You are being interrogated – To establish that your 5th Amendment rights have kicked in, you must also prove that you were being interrogated, as opposed to merely being asked preliminary questions. For example, if the police encounter someone on the street, they might ask them if they have any weapons on them. That would not be considered an “interrogation” under the law.

When can the state use my statements against me?

 If the government wants to use statements that you provided in court, they must establish that you made the statements when you were not in custody, and you were being interrogated, after you were read your Miranda rights. In a typical case, the state will establish that the officer informed the defendant of their right to remain silent, among other things, before they began interrogating them. Police prefer to have a waiver of 5th Amendment rights in writing as opposed to only verbally.

The Waiver of Rights is generally produced by the state during the discovery phase of your case. If you were in custody, being interrogated, and not informed of your 5th Amendment rights, the court could bar the government from introducing any statements you made during your arrest.

Talk to a Macon, IL Criminal Defense Lawyer Today 

The Macon IL criminal defense lawyers at Patel Law, PC represent the interests of those who have been arrested and charged with serious crimes. Call our office today to schedule an appointment, and we can begin preparing your defense immediately.