Talking Can Lead to Trouble: Exercise Your Right to Remain Silent

July 25, 2017 | By Fulgham Hampton Criminal Defense Attorneys
Talking Can Lead to Trouble: Exercise Your Right to Remain Silent
Talking Can Lead to Trouble Exercise Your Right to Remain Silent

Talking Can Lead To Trouble

It is human nature to want to tell your side of the story. Talking is not always in your best interest. This is especially true if you have been charged with a crime or are under law enforcement suspicion of committing a crime. The only person you should be speaking to about the facts and circumstances about your case is your lawyer. Your lawyer is your only friend in these situations; the only one you truly can trust. You do not need to try to convince your family or your friends that you did not commit the crime. The only people you need to convince are the people sitting in the jury box and the judge on the bench.

You have the absolute right to not be a witness against yourself. This is called the privilege against self-incrimination. The right is protected by the United States Constitution, the Texas Constitution, and Texas statutes. No one can force you to give up that right, but you can waive it voluntarily. If you do waive it, anything you say can, and most assuredly will, be used as evidence against you in court. It is common knowledge the Miranda warnings must be given to a person who is in custody and is subject to interrogation. The Miranda warnings are not required if you are arrested and no one asks questions. So too, the warnings are not required if you are not in custody. The rule applies to law enforcement; private citizens cannot interrogate, but they can become agents of law enforcement.

Law enforcement officers frequently use citizens as agents to get information from a person accused of a crime. If a private citizen acts as an agent, then the rules of interrogation apply. Therefore, an agent must give the Miranda warnings to the person prior to asking any questions if the person is in custody. Furthermore, the rules of voluntariness of the confession also apply. Practically speaking, a person who is acting as an agent of the police will not give formal Miranda warnings. The agency relationship between police and witness is rarely formalized. Rather, whether a witness acts as an agent is largely based upon the circumstances of the case. The person who claims the witness is an agent actually bears the burden of proving the agency relationship.

The accused is afforded other rights in addition to the Miranda warnings once the formal prosecution has begun. At that time, the accused has the right to be represented by counsel. Thus, any statements made after the formal prosecution has begun must be made after voluntarily and “expressly” waiving the right to an attorney when speaking with law enforcement. Once the right to counsel applies, a person will be deemed to be acting as an agent if there is an agreement with law enforcement, including the prosecutors, or instructions from law enforcement to obtain a statement from the accused.  If the government has made no promises in exchange for help obtaining a statement from the accused or nothing was offered to the person, then there is no agency. It is important to note that law enforcement does not have to refuse information given to them, even if it is from a person with ulterior motives. The information must be deliberately elicited from the accused by a government agent. If not, then the formal rules applying to law enforcement do not apply.

Contact An Experienced Criminal Defense Attorney Prior To Speaking

There are many situations in which a person might feel compelled to talk. Call Fort Worth criminal defense attorney Brandon Fulgham to discuss your case. He is an experienced defense lawyer who has only one thing in mind: your best interest. It is simply too risky to trust anyone else when the stakes are so high. Call Attorney Fulgham today at 817-764-1392 and put your trust in his experience.


Hailey v. State, 413 SW 3d 457 (Tx. App. Ct. 2012)            

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