NOT an attorney here, to get that up front. I'm retired Navy and currently a nuclear engineer.
HOWEVER...I have had a rather unpleasant dealing with the UCMJ that lead all the way up to an Art. 32 (essentially, the military equivalent of a grand jury) involving my first wife while I was still in the Navy. So I have some experience on the matter of the "right to keep silent".
Be that as it may, my comments are my own and not intended to be anything other than that.
For those of you who don’t know me on this forum, I tend to get “wordy”. Bear with me and I’ll try to keep on point.
We have a right to keep silent...and as has been pointed out by
@Spats McGee, few have the
ability to exercise it. The "why" of this is human nature, and the fact that the police are trained (some more so than others) at exploiting this human nature.
People in general will naturally talk to "explain". This is a very human behavioral trait. Ask us a question, we want to respond. Put us in a given set of circumstances and that natural reflexive trait can be leveraged to great effect by the person doing the questioning. Questions can be straight forward, such as "Tell me what happened here". That same question can be phrased subtly different, however, which will significantly affect the average person’s response. “Can you tell me what happened here?” “All I’m trying to do right now is find out what happened. What did you see?” “The EMTs have arrived. Why don’t you go see them and I’ll see how you’re doing in a few minutes?”
“Can you tell me…” is a polite phrasing that doesn’t sound forceful. Polite behavior engenders a level of trust and makes people want to respond.
“All I’m trying to do…” makes the person being questioned think that the officer is “only” trying to find out and not find anything they can use against you.
“Why don’t you go see the EMTs first…” engenders a level of trust because the officer has shown empathy for their care and well being.
All these things, and more (such as a desire to “prove” one’s innocence), act upon our psychological predisposition to talk.
And this even works with people who KNOW they’re either guilty or closely associated with the “wrong side of the law”. They, too, are subject to having their inherent behavioral traits manipulated with tactics tailored to do this based on their own personality traits.
SO…what this means is to exercise your right to remain silent you need to clearly articulate this (being vague and assuming that not talking is exercising this right is NOT enough) and then KEEP YOUR MOUTH SHUT.
The right to remain silent is NOT a selective right. You cannot remain silent on some issues while flapping your lips on others.
“Why aren't the police required to tell you things like…”
Well, quite frankly it’s not their job to educate everybody. Heck, quite often they don’t “know the law” nearly so much as the average Joe thinks they do. And guess what? The police are allowed to lie their keisters off in the course of an investigation. WE, however, do not have that protected luxury. So…exercise your right to remain silent and keep your mouth shut.
Police officers are LAW ENFORCEMENT OFFICERS. That’s their primary responsibility. When they investigate something/someone, they’re looking for ANYTHING that supports violations of the law. They’re not looking to “prove” someone “innocent”. Yes, they’re (generally) pursuing a course that ought to eventually take them to the actual “guilty” party. Most cases it’s obvious. Others, not so.
So…if you’re being questioned in any capacity, REGARDLESS of whether or not you’re being detained or arrested, REMEMBER: ANYTHING YOU SAY CAN AND WILL BE USED AGAINST YOU IN A COURT OF LAW.
Were you just a bystander/witness that saw something? ANYTHING YOU SAY…
Were you detained by any means? ANYTHING YOU SAY…
And “detained” means “not free to go”. It doesn’t mean arrested and put in cuffs. You are “detained” if the officer does not allow you to leave. If you want to know if you’re “detained”, then ASK. “Am I being detained? Am I free to go?” There are PLENTY of scenarios where the courts may go either way on this, so there should be NO ambiguity here.
There are all kinds of circumstances and nuances here. In many cases, all we’re trying to do is be helpful. A witness to a vehicular accident, for example, wants to be helpful in describing the events they witnessed. It’s hard to argue the “need” for the right to remain silent under such circumstances. This is a choice we must make every time we interact with LEOs, and I’ll certainly not gainsay this.
In the end:
The law (in court) is ONLY “on your side” when being questioned when you
explicitly exercise your right to remain silent properly.
Your right to remain silent exists
whether you are detained or not and ought to be exercised in either case when you are being questioned.
Clarify by asking “Am I being detained? Am I free to go?”
If you are being detained, and you wish to exercise your right to remain silent, expressly state this and then keep your mouth shut.
If you are not being detained, and you don’t wish to answer any questions, expressly state this and then keep your mouth shut. And then LEAVE if you have no other business there.