The Right to Remain Silent

Written by DNWML Community Engagement Coordinator, Eliot Carter 

A Breakthrough Blog reader asked us to talk about the Fifth Amendment and the “right to remain silent.” We appreciate your suggestion! If you have an idea for a blog post, please email eliot@dnwml.org. 

NOTE: This blog post is for education only. This is not legal advice. 

First, the phrase “right to remain silent” doesn’t actually come from the Fifth Amendment. The Fifth Amendment is a part of the Bill of Rights, a key part of the US Constitution. The Bill of Rights was not written in plain or simple language (like these blogs try to be). The writers used many big words and phrases because they were writing mostly for other highly educated people from the late 1700s. This can create problems for everyday people more than 200 years later if they don’t know what the law actually said. 

This happened to a man named Ernesto Miranda in the 1960s. He was arrested and police officers made him sign a confession before he could speak to a lawyer. When he later got a lawyer, the lawyer argued that the confession was not valid because Miranda did not understand what his rights were. The Supreme Court heard his case and decided that police officers need to tell people what their rights are if they get arrested. These are now known as the Miranda Rights, and you have probably heard them if you have watched TV or movies with police officers in them: 

1. You have the right to remain silent. 

1. Anything you say can and will be used against you in a court of law. 

1. You have the right to an attorney. 

1. If you cannot afford an attorney, one will be provided to you free of charge. 

1. You can assert these rights at any time. 

This is basically a plain language summary of what the 5th and 6th Amendments say (you can read the original text here). However, that doesn’t mean everyone who hears them will understand and remember what their rights are. Deaf and hard of hearing people, people with I/DD, people experiencing a mental health crisis, and plenty of others still might not understand what their Miranda Rights are just by having a police officer speak to them. These are also people whose words and actions might be misunderstood by police officers. There is not just one set of rules that police officers can follow that will work for every person with a disability. 

There is a bill in Michigan (SB 554) that was written to help in some of these circumstances. It would create what is called the Blue Envelope Program, which several other states have as well. If this were to become law, someone with a disability that impacts their communication could get a blue envelope from the state to keep in their car. This envelope would contain the documents a driver would need if they were stopped by a police officer, along with information for the officer about their specific disability. In theory, this could help the officers communicate better with drivers with disabilities at traffic stops. However, we don’t have data yet on how good the Blue Envelopes are in these situations. It is also not a broad solution to the problem of people with disabilities understanding and exercising their Miranda Rights. If this is a cause you feel strongly about, you can contact members of the Michigan Senate’s Committee on Health and Human Services, where this bill is currently stalled. While it wouldn’t solve every issue, passing this bill could help prevent misunderstandings between many drivers with disabilities and law enforcement. 

Being misunderstood by police officers can be dangerous or deadly for many people with disabilities. This was one of the themes of the Stop the Stigma conference I recently attended, which focused on people with disabilities in the criminal justice system. The conference showed the documentary Being Michelle, which followed a deaf woman with autism and a traumatic background. She had been in trouble with the law several times without a way for her to understand what was going on in a system that did not accommodate her. Instead of giving her access to an interpreter and allowing her to sign, she was often cuffed and shackled. Michelle did not drive, and her arrests were not related to traffic stops. She still had the right to interpreters when being questioned by the police and to be represented by a public defender, but she did not know how to ask for these things. 

Until we have a criminal justice system that meets the needs of people with disabilities, people must educate themselves on their rights and practice exercising them. The Innocence Project says that when you are exercising the right to remain silent, you must do so “unambiguously,” which means clearly. The best way to do this is to say, “I am exercising my right to remain silent” rather than just not speaking, if possible.  Similarly, if you want to exercise your right to an attorney, you must do so unambiguously. If you are in custody, you can say, “I want to talk to a lawyer” or “I will not answer questions without a lawyer.” You also have the right to communication aids, including communication boards, interpreters, speech-to-text devices, or other tools.  You can exercise your rights with one of these aids. If you are given a form to sign, it may be asking you to waive (or give up) your rights. Make sure you read anything a police officer gives you carefully before you sign your name on it. If you can’t understand what is on the form, you can ask for a lawyer. 

Read more about the rights of people with disabilities from the Innocence Project: https://innocenceproject.org/news/know-your-rights-disability-police-interrogation/  

You can watch a news clip about the documentary Being Michelle here: https://www.youtube.com/watch?v=t5k6JDmJ3hk