You Have the Right to Remain Silent

You have the right to remain silent in face of any police questioning, and you should exercise that right! This right is provided by the Fifth Amendment to the United States Constitution and a similar provision under the Georgia Constitution. You have the right to remain silent even before you have been arrested, and your silence cannot be held against you in any way. If your right to remain silent has been violated, hire a Georgia Criminal Defense Attorney to fight for you.

The Miranda Warnings

Probably the most common misconception in the law relates to the Miranda warnings. The general public, perhaps from the way it is portrayed on television and in the movies, believe that the warnings must be automatically given when someone is arrested. Even further, people incorrectly believe that the lack of the warnings automatically means a case will be dismissed. 

In fact, Miranda only applies when a person is subject to what is called custodial interrogation. This means that the person (a) must be under arrest, and (b) questioned, or the functional equivalent thereof, by law enforcement. Overall, Miranda has nothing to do with the legality of arrests, it deals with the legality of statements made by arrestees. 

When a person has been arrested and the cops want to question him or her, they must first be advised of the following:

1. That they have a right to remain silent.

2. That anything they say can and will be used against them.

3. That they have the right to have an attorney present with them during any questioning.

4. That if they cannot afford an attorney, the court system will appoint an attorney to represent them.

Once the warnings have been provided, and absent any other legal problems with the interrogation, any statements made by the arrestee can later be used against them in a prosecution. When the warnings are not provided in a situation where they would be required, any statements made should be ruled inadmissible at the defendant's trial. 

Most importantly, when a defendant's unequivocal invocation of one of the rights contained in the warnings is not "scrupulously honored" by law enforcement, any subsequent statements are inadmissible. Thus, under the law, when a defendant unambiguously states that they want an attorney or want to remain silent, all questioning must cease.