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Both the 5th Amendment of the United States Constitution and California state law protect your right to avoid incriminating yourself. When police give you a Miranda warning, they are reminding you of your 5th Amendment rights.

Yet many people end up inadvertently waiving these rights. Primarily they do this by talking to the police when they shouldn’t. 

Detained and Questioned

When you are detained and questioned, but not under arrest, you won’t hear a Miranda warning. To invoke your 5th Amendment rights, you would need to say, “I respectfully decline to answer and I invoke my 5th Amendment rights.” You should do this in response to every question.

You might also answer, “I will not answer questions without a lawyer present or without a lawyer’s advice,” or even ask if you are free to go. If they say they are free to go they may not hold you.

Do not lie to the police. Lying to the police can be used against you later. Do not simply remain silent without invoking your rights, as this, too, can be used against you in court later. You must invoke your rights, clearly and succinctly. For example, in the supreme court case Salinas v. Texas, a defendant spoke to the police voluntarily. He was not under arrest.

“When the police officer asked the defendant about his possible involvement in the murder, the officer testified, the defendant became very quiet, and his entire demeanor changed. Police offered the defendant’s silence and behavioral change as incriminating evidence. The court held that police did not violate the defendant’s rights against self-incrimination, in part because the defendant did not expressly invoke his Fifth Amendment rights.” [Emphasis ours].  –Justia

Here in California, the California Supreme Court reached a similar conclusion in People v. Tom. In that case, the defendant “expressed no concern about the well-being of other people involved in the collision.” This was a drunk driving case. The defendant had not yet received warnings. He would have had to assert his own right to silence to gain 5th Amendment protections.  

Under Arrest

Once you’re under arrest you can sit there silently if you want to, though it’s usually more effective to say, “I invoke my right to remain silent, I invoke my right to an attorney.” You only have to give them your name. You don’t have to answer any more questions.

Most people panic and try to convince the police of their innocence. This never works. Once the police arrest you they intend to hold onto you. There is not a time when they are going to say: “Oh gosh, Mr. Smith, we’re just so sorry, we clearly made a big mistake, you’re free to go.”

Instead, you’re going to answer questions that you think are innocuous. They’ll say: “Where were you last night at 10 PM?” You’ll think you’re giving an alibi when you answer that you were at your friend’s house. In reality your friend’s house is less than 5 miles from a store that got robbed at gunpoint at 11 PM, and you’ve just placed yourself within the vicinity of the crime. 

There is no good reason to talk to the police!

If you invoke these rights but then answer questions you’ve waived your rights. Don’t let the police provoke you. When you refuse to talk to the police you may well deny them of the only evidence they could possibly get to incriminate or prosecute you. Yet you must know when your silence is not enough. 

Once you invoke your rights, you need to know who you’re going to call for help. Consider putting our firm in your phone so you can contact us when you’re finally allowed that phone call. You’ll get far more attention than someone with a public defender would, we have a bilingual staff, and our rates are more affordable than you probably think. 

In trouble? Call now.

See also:

Do You Have to Provide DNA When Under Arrest in Los Angeles? 

How Does Bail Work in Los Angeles?

What Should You Do If There’s a Warrant Out for Your Arrest in Los Angeles?