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Exceptions to the right to remain silent

On Behalf of | Apr 29, 2021 | Blog, Criminal Law

Most Florida residents know the Fifth Amendment to the U.S. Constitution gives criminal suspects the right to remain silent when questioned by police officers, but they may not know that there are several exceptions to this rule. The right against self-incrimination applies when police ask questions to learn more about a crime and the role played by the individual being questioned. Routine questions asked during the booking procedure, such as asking a suspect to provide their name, address and date of birth, are not considered custodial, which means the right to remain silent does not apply.


Police officers and prosecutors sometimes skirt the Fifth Amendment by asking others to ask questions on their behalf, and suspects are often placed in cells with jailhouse informants just for this purpose. Civil rights advocates have argued that statements made to jailhouse informants should not be used as evidence, but the nation’s highest court has ruled that they are permitted as long as they are not made under duress.

The public safety exception

The Supreme Court established another exception to what is commonly referred to as the Miranda rule in a 1984 case involving a New York man who was asked about the whereabouts of a firearm before being informed that he had the right to remain silent. The justices ruled that the question about the gun was permissible because the safety of the public was at stake. In 2013, the public safety exception became the subject of fierce debate when a suspect linked to the Boston Marathon bombings was questioned without being informed of his rights.

Remaining silent

Experienced criminal law attorneys would likely advise their clients to avail themselves of their right to refuse to answer police questions even when the officers claim that cooperation will lead to more lenient treatment. Attorneys could point out that only prosecutors have the authority to reduce charges or make sentencing recommendations, which are things they could be reluctant to do if the suspect has already made a full confession. Attorneys may also urge their clients to be careful about what they say in front of people who stand to benefit if they assist law enforcement.