It sounds backwards, right? You have the right to remain silent — but to actually use it, you have to say so.
Here’s what’s really going on. When police read you your Miranda rights during a custodial interrogation — meaning you’re being held and questioned — they tell you that you have the right to remain silent. What they don’t tell you, and this is the part that trips people up, is that just sitting there quietly doesn’t count. Courts have ruled that mere silence, even for an extended period of time, does not count as invoking your right to silence. Police can keep questioning you the whole time.
To actually stop the questioning, you have to say something clear and direct. Something like: “I am invoking my right to remain silent.” Or even just: “I’m not answering questions.” Saying it plainly puts police on notice that you are asserting this right.
Even better: ask for a lawyer. Saying clearly, “I want a lawyer,” is the strongest thing you can say. It unambiguously invokes both your right to silence and your right to counsel, and police must stop questioning you until a lawyer is present.
As the University of Chicago Legal Forum explains, to enjoy the benefit of the right — meaning, to actually get police to stop questioning you — you have to speak up clearly. The Miranda warning itself gives no hint that this is how it works. And police aren’t going to volunteer that information either.
Note: this advice applies specifically to custodial interrogation — situations where you’ve been detained or arrested and police are questioning you. If you’re not in custody, the rules are different. When in doubt, ask for a lawyer first.
So remember it this way: the right to remain silent is real and it protects you. But you have to claim it out loud. Say the words. Then actually stay quiet after that.