The Right to Remain Silent: When and How to Use It

You have seen and heard it on TV. The perpetrators are caught, and the police starts the spiel: “You have the right to remain silent, everything you say can and will be used against you in a court of law.” We hear it so often we take it for granted, and most of us don’t even know it is called the Miranda Rights.

Any lawyer who specializes in criminal law knows that anyone suspected of a crime is innocent until proven guilty, but they also have the right to silence, which means they have the option not to answer law enforcement when questioned about their culpability or involvement, especially in the United States.

What The Right to Remain Silent Means

Many people assume that they know what the right to remain silent entails. But many people get it wrong. First of all, the right to remain silent is limited to several nations. Some countries have no right to silence. Fortunately, most Western countries follow these rules. But there are some essential differences. In Australia, thanks to the heritage of English law, the right to remain silent is a common law right.

The idea behind the right to remain silent is that a person has the right to protect themselves from being incriminated in a crime by any statement that they make. Police can pounce on any word that you say and use it as evidence. This behavior is the reason for the smart advice of waiting for a lawyer before you make any statements. Consulting with a lawyer will ensure that you don’t say anything incriminating.

Note that the right to silence covers more than police questioning. You also have the right to silence when it comes to civil proceedings and non-curial contexts. You should also note that the right of silence also covers documents. In 2004, the Full Federal Court of Australia noted that a person is not bound to produce any document that would result in their incrimination in a crime.

Interactions With The Police


People are familiar with the usual Miranda speech from US police shows. In Australia, you won’t hear that. This is because those are Miranda rights, which come from the now-legendary Miranda vs. Arizona court case. Since that happened in the US, those Miranda rights are only applicable in the US. What you can expect from the Australian police is much different. The main similarities are that they will inform you of your arrest and the alleged crime, while also emphasizing your right to remain silent. They will also advise you to contact a friend or a relative about the arrest. Additionally, they will also advise you to contact a lawyer and to have an interpreter if necessary.

You may not be under arrest but you can also be called in for questioning. Your right to remain silent is also active during these interactions. The police might want you to identify offenders or to get more details about an incident. This part of the job of the police but this does not mean you have to immediately cooperate with them. Simply respond that you are refusing the interview. This is much better than saying “no comment” for the entire time inside the interrogation room.

There are some things that you have to answer. One exemption to the right to silence is your identity. When the police ask you to identify yourself, you need to answer truthfully. This is mainly your name and address. If you do not give an honest answer, the police can charge you with an offence. Another exemption is when a vehicle you own takes part in a crime. You must tell the police who was the driver of the car and if there were any passengers in it.

Answering The Police

You will have to decide on whether to answer any questions of the police. While the right to remain silent can protect you, answering them can be in your favor. This is where a good lawyer comes in. Before you make any decision about answering, you need to have a thorough discussion with your lawyer. If the police want to talk to you and you have not contacted a lawyer yet, you should inform them that you will only talk to them after a discussion with a lawyer.

Note that the venue of the interview does not matter. Anything you say to the police out in the street can be recorded in a statement by the police. They can then use this in court against you. Additionally, if you are under 18, there needs to be an independent adult in the interview to ensure that everything is legal.

Being aware of your rights is important. Your right to remain silent can protect you from false accusations and implication in a crime that you never perpetrated.

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