The Right to Remain Silent

Thanks to television and the movies, most of us are familiar with our basic right to remain silent under police questioning. The Florida Supreme Court is now considering whether, under Florida law, prosecutors can use a suspect’s silence even before the police formally interrogated her as evidence of her guilt.

According to a story in The Sun Sentinel, in 2013 Donna Horwitz was found guilty of first-degree murder in her former husband’s shooting death. At trial, the prosecution introduced evidence that she did not speak to the police when they arrived at the crime scene and questioned her, prior to arresting her and advising her of her Miranda rights. According to the prosecution, Horwitz’s silence was evidence of her “consciousness of guilt,” because an innocent person would have answered police when they asked her questions such as whether she was all right, and whether she wanted water. Horowitz did not testify at the trial. The appeals court reversed Horwitz’s conviction, but asked the Florida Supreme Court to rule on whether the prosecution can present evidence of a defendant’s pre-arrest silence when the defendant does not take the witness stand. The Court heard arguments in November and a decision is pending.

What are Miranda rights?

Because of the 1966 U.S Supreme Court decision in Miranda v. Arizona, the police must advise you of your rights under the Fifth and Sixth amendments to the U.S. Constitution when you are in custody and under interrogation. Although no specific wording is required, the language police use must reasonably make you aware of these rights. Typically, it goes something like this:

1. You have the right to remain silent. If you give up that right, anything you say may be used against you in a court of law.
2. You have the right to consult an lawyer, and to have an lawyer present at any time and during questioning.
3. If you cannot afford an lawyer, one will be appointed for you.
4. You have the right at any time to stop answering questions and invoke your right to an lawyer.

When you request an lawyer, the police can no longer question you until your lawyer is present. If police fail to give you Miranda warnings, they cannot use anything you say in response to questioning against you in court.

When are Miranda warnings required?

Police do not have to give Miranda warnings unless a person is both in custody and under interrogation. “In custody” does not necessarily mean under arrest or in handcuffs. Rather, it means any situation in which the police significantly restrict your freedom. If the police question you but make it clear you are free to leave, you are not in custody and Miranda warnings do not apply. Similarly, if the police arrest you but do not interrogate you right away, they need not give Miranda warnings until interrogation begins. Remember, even if you are not in a custodial interrogation situation that triggers the need for Miranda warnings, you may still invoke your right to remain silent and not answer pre-arrest questions.

Can silence be used against you?

Unfortunately, yes, according to the U.S. Supreme Court in Salinas v. Texas. Unless you specifically state that you are invoking your Fifth Amendment right to silence under pre-arrest questioning, your silence or refusal to speak to police can be used at trial as evidence of your guilt. In Donna Horwitz’s case, however, her lawyer argued that the issue has not been decided under Florida law. It remains open to the Florida Supreme Court to decide that, under Florida law, silence in the face of pre-arrest questioning cannot be used against you.

Contact A Florida Criminal Defense Lawyer

If you have been arrested, are involved in a criminal case, or have questions about your rights, the experienced Florida criminal defense lawyers of The Baez Law Firm can help. Contact us today for a consultation.