How do I invoke my right to remain silent?

Even if you've never faced a criminal charge before, you probably have heard about cases being thrown out on a technicality. The processes of civil or criminal courts in West Virginia are not a straight road down which we all unerringly go. There can be potholes at any stage.

And though the road is supposed to be the same for all, those who use it regularly, such as police and prosecutors, know where potholes may be. Unless they are obliged to by law, they tend not to offer pointers that might help you if you are arrested.

Authorities don't have a choice on one issue. When they detain you, they are obligated to make sure you understand that you have the right to remain silent and a right to speak with an attorney before any questioning. Experienced criminal defense attorneys agree that the time to invoke those rights is immediately upon being detained. However, they also know that there is a right way to do it.

For example, the full protection of the Miranda warning doesn't attach just by refusing to speak. You have to state explicitly that you want to invoke the right to remain silent or your right to an attorney. That requires that all questioning stop. If you volunteer information after being informed of your rights, authorities can claim you waived your rights and anything said could be used against you later.

No specific words invoke your rights. You just have to use words that make it clear, such as "I want to remain silent," or "I want to speak with my attorney." Mushy comments like, "Maybe I should talk to my lawyer," or "I plan to …," won't protect you.

Once invoking silence, consult an attorney to determine your options and decide what to do next.

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