It is common for clients to ask me if I can get their case dismissed because the police did not tell them that they have the right to remain silent when they were arrested. The right to remain silent comes from the 5th Amendment to the United States Constitution which protects citizens from incriminating themselves. This means that you cannot be forced to testify against yourself. The 5th Amendment’s right to remain silent is an important right that every citizen has but is not asserted as often as it should be by criminal defendants. In order for a statement made to the police during a custodial interrogation to be used against you in Court, the state has to prove that you made a knowing, intelligent, and voluntary waiver of your 5th Amendment right to remain silent. Let me explain.
It’s important to know when your 5th Amendment right to remain silent kicks in. Many people mistakenly believe that you can assert your 5th Amendment rights as soon as you are arrested. But that may not always be the case. The 5th Amendment’s right against self-incrimination applies to situations in which the defendant is in custody and is being questioned by the police. If you waive your 5th Amendment right to remain silent and voluntarily speak to the police, anything you tell them can be used against you in Court to prosecute you for the crime(s) that you are being charged with.
There are 2 basic elements to the 5th Amendment that must apply to the case in order for the 5th Amendment to kick in. The first element is ‘custody’. In order for the 5th Amendment to apply, you had to have been in custody. Whether you were in custody or not depends on the specific facts of your case. Generally, you will be considered to have been in custody if you were not free to leave. When raising a possible 5th Amendment violation in Court, when the police officer is testifying, the defense attorney will ask the officer if the defendant was free to leave when the questioning began.
The 2nd element to the 5th Amendment is ‘interrogation’. In addition to being in custody, the defendant has to have been interrogated as opposed to merely being asked preliminary questions. An example would be when the police encounter someone on the street and ask that person if they have any weapons on them. A question like that is usually not considered to be an interrogation. Courts consider this to be a preliminary question that’s asked by the police in order to protect themselves. Asking a defendant who exits their vehicle at the request of a police officer to perform Standardized Field Sobriety Tests for a DUI if they have any weapons on them is not considered the type of interrogation that requires that the government prove that the defendant made a knowing, intelligent, and voluntary waiver of his 5th Amendment rights before answering that question. Even though the defendant was not free to leave when he was outside of his vehicle, the 5th Amendment does not protect the defendant from having the weapon not used against him in Court because he was not informed of his 5th Amendment rights when he told the officer that he had a gun on him.
In order for the government to use a statement that you made in Court, the government has to approve that you were adequately informed of your rights. In a typical 5th Amendment case, the government will show that the officer informed the defendant that they have the right to remain silent and that anything they say can and will be used against them in Court. They also will show that the officer told the defendant that they have a right to a lawyer and that if they cannot afford a lawyer, the Court will appoint one for them. While your signature on a document waving those rights is not necessary in order for that statement to be used against you in Court, it is preferable for the police to have you waive your rights in writing. The Waiver of Rights is usually produced by the government during the discovery phase of your case. If you were in custody, and you were interrogated and you were not informed of these rights, the Court may bar the government from introducing any of those statements in Court during the trial of your case.
My advice to clients is to exercise their right to remain silent whenever they are question by the police for any reason. You are under no obligation to talk to the police when you are under investigation and being questioned by them. As a matter fact, one of your rights, as a US citizen, is to not cooperate with the police when they are investigating you for a crime. In most criminal cases, the biggest mistake that criminal defendants make is talking to the police.
James Dimeas is a nationally recognized, award-winning, criminal defense attorney, with over-29 years of experience handling criminal cases throughout Chicago, Cook County, DuPage County, Kane County, and Lake County. Recently, James Dimeas was named a “Top 100 Criminal Defense Lawyer in the State of Illinois” for the years 2018, 2019, 2020, and 2021 by the American Society of Legal Advocates. James Dimeas was named a “Best DUI attorney,” a “Best DUI Lawyer in Schaumburg,” and a “Best Criminal Defense Lawyer in Chicago” by Expertise. James Dimeas was named a “Top 100 Criminal Defense Trial Lawyer” by the National Trial Lawyers. The National Academy of Criminal Defense Attorneys gave James Dimeas the “Top 10 Attorney Award for the State of Illinois”. James Dimeas is rated “Superb” by AVVO, 10 out of 10, the highest rating possible for any criminal defense lawyer in the United States. The American Society of Criminal Law Attorneys named James Dimeas a “10 Best Attorney for Client Satisfaction. Attorney and Practice Magazine gave James Dimeas the “Top 10 Criminal Defense Attorney Award for Illinois”.
If you are facing criminal charges, you can contact James Dimeas anytime for a free and confidential consultation. You can speak to James Dimeas personally by calling him at 847-807-7405.
What Should I Do If I Am Arrested, by James G. Dimeas, Chicago Criminal Lawyer Blog, November 26, 2021.
Can The Police Arrest Me Without Any Evidence in Illinois? by James G. Dimeas, Chicago Criminal Lawyer Blog, July 3, 2017.
The 5th Amendment to the United States Constitution.