Call Now: (312) 401-5510

Silence is Golden: Your Right to Remain Silent

January 05, 2021

The right to remain silent when being questioned by the police is a crucial part of our freedom. It offers you some of the greatest protections of any constitutional right, at least when it comes to dealing with the police. In this article, we’ll go over the right to remain silent so that you are well equipped if you ever end up in a situation where the police are trying to question you.

Where Does The Right to Remain Silent come from?

The right to remain silent is based on the the Fifth Amendment to the U.S. Constitution. It guarantees that we will not be required to testify against ourselves.

Specifically, the 5th Amendment reads: “No person . . . shall be compelled in any criminal case to be a witness against himself.”

When you speak to the police, you are acting as a witness against yourself. There isn’t much of anything to gain and there’s a whole lot to lose.

The Constitution guarantees this right, so it would be silly to just throw it away. Thankfully, there are some protections in place to try to prevent you from saying more than you need or want to. This is where Miranda rights come in.

What are your Miranda rights?

Probably the most famous criminal case of all time is Miranda v. Arizona, although most people just know the first name, “Miranda.” What do we know about Miranda?

The Miranda court held 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.”

Remember, the police only have to inform you of your right to remain silent if you are in police custody. So if an officer approaches you on the street and starts to ask you questions, anything you say to the officer may very well be used against you in a court of law. It is your job to assert your right to remain silent, even if the officer doesn’t read you your rights.

Right to Remain Silent

Why is The Right to Remain Silent important?

The right to remain silent is just as important for the innocent as it is for the guilty. Once you start talking, you have no control over what happens.

Protect Yourself Against Self-Incrimination

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 a lot easier and more effective if you never said anything at all.

Police departments train their officers in report writing and in interrogating citizens. 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 are going to sound in court when an officer testifies, or how they will look in a transcript. Eliminate that uncertainty by remaining silent so that you can maintain maximum control over your case.

What should I say when an officer questions me?

If an officer questions you on the street, the best thing to do is to ask if you are free to leave. If the officer says that you are free to leave, just walk away. But if he says you are not free to leave, then he has to decide if he has enough evidence to detain or arrest you.

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 that 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. 

There is a very short list of things that should come out of your mouth when dealing with the police:

  1. Your name (if asked).
  2. “Am I free to leave/Am I under arrest?”
  3. “Do you have a search warrant?”
  4. “I don’t consent to searches.”
  5. “I decline to speak without an attorney.”

Physical vs. Verbal Cooperation

Exercising your right to remain silent is one very important exception to the general rule of being cooperative with the police. You always want to be physically cooperative. Let the officer know if you plan going to make a move. But that doesn’t mean you should assist the officer in his investigation by providing information about yourself or others.

Just as consenting to a search may seem like a good idea at the time, volunteering information to the police may also seem like the right thing to do to assure the officer that you have nothing to hide.

But, just like consenting to a search, providing information to a police officer is far more likely to hurt you than it is to help you – even if you’ve done nothing wrong.

Nothing in this article, however, is meant to suggest that anyone should hesitate to report a crime, or to assist the police in solving a crime in the community.

Conclusion – The Right to Remain Silent

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 (312) 401-5510, or at jordan@jmarshlaw.com.

The information provided on this website does not, and is not intended to,
constitute legal advice; instead, 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.

Contact Us
Phone Call(312) 401-5510