The right to remain silent when being questioned by the police isn’t just something we see on TV shows—it’s a crucial part of our freedom. It offers citizens of the United States some of the strongest protections of any constitutional right (especially when dealing with the police).
In this article, we’ll go over everything you need to know about the right to remain silent so that you are well-equipped in any situation where the police are trying to question you.
The right to remain silent comes from the Fifth Amendment to the United States Constitution. It guarantees that you will not be required to testify against yourself if you’re accused of a crime.
Specifically, the United States Constitution’s 5th Amendment reads:
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
In plain terms, here’s the most important part:
“No person . . . shall be compelled in any criminal case to be a witness against himself.”
The Fifth Amendment covers you in a range of situations, including the courtroom and in police interviews and interrogations. That’s because when you speak to the police or testify in a court, you may be acting as a witness against yourself. So there isn’t much of anything to gain, and there’s a whole lot to lose.
The United States Constitution guarantees this right, so it would be silly to throw it away. Thankfully, some protections are in place to prevent you from saying more than you need or want to.
This is where Miranda rights come in.
There are two rights included in your Miranda rights warning—the 5th amendment right to remain silent and the 6th amendment right to counsel. Police read Miranda rights when they take suspects into custody. It sounds like this:
“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just explained to you?”
The most famous criminal case of all time is Miranda v. Arizona, although most people know the first name “Miranda.”
In 1966, Ernesto Miranda was questioned in connection to a kidnapping and rape. After two hours of police interrogation without being informed of his rights, officers obtained Miranda’s written confession, which was entered into evidence at his criminal trial.
The United States Supreme Court ultimately reversed Miranda’s conviction, holding that
“…the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves…the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”
In other words, the police only have to inform you of your right to remain silent if you are taken into police custody.
So if an officer approaches you and starts asking you questions, anything you say to the officer may be used as evidence of guilt. It is your job to assert your right to remain silent, even if the officer doesn’t read you your rights.
Whether you did the crime or not, always invoke your right to remain silent. The right to remain silent is just as crucial for the innocent as it is for the guilty.
Once you start talking, you cannot control how police use that information in their criminal investigation. If you speak to an officer about yourself or your activities, the officer may later claim you confessed to a crime or said something incriminating, even if you didn’t.
You can certainly deny saying what the officer claims. But it’s easier and more effective for your defense if you never said anything at all.
Police departments train their officers in report writing and in interrogating citizens. Therefore, the officer will have a certain amount of credibility in court, and it will be difficult for you to overcome that by persuading a judge or a jury that the officer’s recollection and report are incorrect.
Also, if you refuse to speak to the police, the officer is less likely to try to make up something you said. So use your right to remain silent as your shield against self-incrimination.
You never know how your words will sound in court when an officer testifies or how they will look in a transcript. Eliminate that uncertainty by remaining silent to maintain maximum control over your case.
There is a very short list of things that should come out of your mouth when dealing with the police:
Whether the officer questions you on the street, approaches you on private property, or asks you to come down to the police station, the best thing to do is to ask if you are free to leave. If the officer says yes, then simply walk away.
But if he says you are not free to leave, then he has to decide if he has enough evidence to detain you or place you under formal arrest. So when the officer asks you questions, what he’s really trying to do is to establish enough evidence to arrest you.
Why would you help him out?
If you think you have nothing to hide because you didn’t do anything wrong, remember that jail cells throughout the nation are filled with innocent people who were wrongfully convicted.
If you think invoking your right to remain silent will make you look guilty, then know that pleading the fifth can never be used against you in a criminal trial.
Yes. Exercising your right to remain silent is an important exception to the general rule of being cooperative with the police. You always want to be physically cooperative.
Even if you believe that officers are being unfair, always comply with the commands of a police officer. However, that doesn’t mean you should assist the officer in his criminal investigation by providing information about yourself or others.
Answering police questions is far more likely to hurt you than it is to help you—even if you’ve done nothing wrong.
As counterintuitive as it seems, you have to tell officers you’re invoking your right to silence—simply being silent doesn’t cut it. Failing to verbalize that you’re invoking your right to silence could work against you.
In one case, Salinas v. Texas (2013), a defendant was being questioned by police about a recent murder. The defendant spoke to police without issue until police asked about his possible involvement in the crime.
Suddenly, his entire demeanor changed, and he became silent. But at no time did he state that he was invoking his fifth amendment right to silence. The police took this change in demeanor as incriminating evidence and charged him with the crime.
When it came down to it in the courtroom, the judge decided that police did not violate the defendant’s fifth Amendment right partly because he never invoked it.
Remember—you can tell officers at any time that you would like to stop answering police questions and request a lawyer.
The right to remain silent is one of the best sources of leverage that you have against the police when they interact with you.
You have no obligation to speak with them. Don’t.
The Constitution protects you from testifying against yourself; this includes answering an officer’s questions. When you answer their questions beyond your identity, you risk having your words used against you in court.
Even if you remain silent, you should still be physically compliant to avoid a resisting arrest charge.
If you think you might have been a victim of a false arrest, an unreasonable search, or other civil rights violation, contact Chicago civil rights attorney Jordan Marsh for a free consultation at (224) 220-9000 or at jordan@jmarshlaw.com.
Nothing in this article is meant to suggest that anyone should hesitate to report a crime or to assist the police in solving a crime in the community.
The information provided on this website does not, and is not intended to constitute legal advice; all information, content, and materials available on this site are for general informational purposes only. Use of and access to this website or any of the links contained within the site do not create an attorney-client relationship between you and our office.