As soon as police take the steps toward arresting a person (placing handcuffs on them) and telling them that they are under arrest, they must read the person Miranda Rights. These Miranda Rights tell a person that they have the right not to make any self-incriminating statements that could later be used against them in a court of law. Police only have to read you your Miranda Rights if they are putting you in police custody.

Let’s say you’re out walking your dog when a police officer approaches you. The officer asks if you can answer some questions they have. If you act suspicious by trying to walk away or refusing to answer the questions, the officer may then arrest you. However, if you choose to answer the questions, the officer may then arrest you based on your statements. Any statements that you make following your arrest can be admissible in court, so keep that in mind.

What is pre-Miranda silence?

Using the example above of you out walking your dog, the police in this situation now approach you and tell you that you are a suspect in killing another person. A person who is innocent will most likely act shocked and refute such statements. So if you were to remain silent, police would think you’re acting suspicious and can use this against you. Since they had not read you your Miranda Rights telling you of your right to remain silent, there was no reason for you to keep quiet. This is known as pre-Miranda silence.

However, if you were to tell police that your lawyer told you not to answer any questions without their advice first, that would be an acceptable reason to remain silent before your Miranda Rights were read to you.

Remember, that if you are arrested you do have the right to remain silent or to request an attorney before you answer the police’s questions. And as soon as you use your right to remain silent or ask for an attorney, the police cannot interrogate you any further. Requesting an attorney is often a smarter move than choosing not to say anything.