The Right to Understand the Right to Remain Silent

“You have the right to remain silent …”

We have all heard this phrase on popular cop shows, but during an actual arrest, do people really understand this right and how to use it? The right to remain silent protects individuals from being compelled to make self-incriminating statements. This is an essential right, one that emerged from a history of torture and coercion by police to force false confessions. Several countries take steps to protect this right, including Australia, Bangladesh, Germany, Hong Kong, Pakistan, South Africa, and the United States. Yet too often there is a failure to ensure this fundamental right is understood.

A study in the United States evaluating police officers’ recitations of arrest rights revealed that the level of comprehension required to understand the rights varied from a 4th grade reading level to a college reading level. However, according to the National Adult Literacy Survey, 70 percent of inmates have the equivalent of a 6th grade reading level or lower. In other words, the recitation of rights upon arrest may be beyond the comprehension of the average arrestee.

In Hong Kong, a survey of customs officers who combat crime at the border revealed that 55 percent did not understand the right to remain silent as a protection against self-incrimination. This is a problem, because an officer who does not fully understand the right to remain silent cannot adequately communicate that right to arrestees.

Another study in the United States published by American Psychologist revealed that 31 percent of defendants believed that remaining silent in the face of police questioning could be used as incriminating evidence at trial. This misunderstanding can compel individuals to offer information, including incriminating information, for fear that remaining silent will make them seem more culpable, thus completely defeating the purpose of the right to remain silent.

The current method of reciting to arrestees their right to remain silent does not take into account the varying levels of comprehension that different people may have. People who are uneducated, mentally-ill, or intellectually disabled are more likely to come into contact with the justice system; many people are arrested when they are under the influence of drugs or alcohol, all factors which inhibit their ability to understand the rights read by police.

In Canada, the “Operating Mind Test” is used to determine whether arrestees have sufficient cognitive capacity to understand their rights. However, this test looks at whether the warnings provided are comprehensible in theory, rather than whether the arrestee actually understood them. In the 1994 case of Whittle, the Candian Supreme Court determined that the warnings provided were comprehensible even though the defendant was suffering from schizophrenia and auditory hallucinations. This standard does not take into account the physiological effects of a mental disorder that may impede the ability to understand one’s rights. The Whittle decision has made it more likely that people who do not understand their rights will be found guilty.

Finally, the same recitation of rights used for adults—and designed for adult comprehension—is often used for juveniles as well. Children are much more vulnerable when questioned by police and are less likely to understand their rights. In some countries, a right to an attorney is not automatic for children, nor is the presence of a parent or legal guardian. Thus children may be questioned alone without anyone concerned for their rights. In the United States, about a third of all confessions from juveniles are shown to be false, which illustrates how minors who do not have a basic understanding of their rights are likely to succumb to police pressures to confess.

Ensuring arrestees understand their rights can be accomplished by tailoring the recitation of arrest rights to each individual, taking into consideration their education, mental capabilities, and age. Police officers should ask the arrestee to explain their rights in their own words to ensure they understand them. To protect the rights of children and adults who lack the capacity to understand their rights, a guardian, such as a social worker, should be employed to help them. A recent European Union directive requires information about arrest rights be presented in simple language that takes into consideration the capacity and vulnerabilities of the arrestee. Additionally, the directive requires officers to provide a Letter of Rights that outlines all arrest rights, which the arrestees can keep with them.

Simply reciting the right to remain silent to an arrestee does not protect against self-incrimination. The arrestee also has the right to understand the meaning of the right to remain silent, including how to properly invoke it and how to safeguard it.

Understanding the right to remain silent is essential because often it must be actively asserted by the suspect and can only be waived knowingly and voluntarily. A simple recitation of the right to remain silent is not enough; police officers must confirm the arrestee adequately comprehends the right. Safeguarding the right to remain silent is essential to preserving the right against self-incrimination, preventing false confessions, and protecting the integrity of the criminal justice system.

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