What Gives Us the Right to Remain Silent?
You’ve probably heard Miranda warnings before, at least on television: “You have the right to remain silent. Anything you say can and will be used against you in a court of law.”
There’s a bit more to it than that, but you get the gist.
These rights derive from the Fifth Amendment to the U.S. Constitution. Because of a 1966 court case, Miranda v. Arizona, law enforcement officers have to advise suspects of certain rights. These include the rights to:
- Have an attorney present during questioning
- Have the state appoint an attorney to represent them if they can’t afford one
- Stop a police interview at any time
When Can’t You Remain Silent?
You always have the right not to incriminate yourself—it’s right there in the U.S. Constitution.
There isn’t really anything in the Constitution that says you have the right not to speak, though.
“What's in the Constitution is a right not to be compelled to be a witness against yourself,” says Kent Scheidegger of the Criminal Justice Legal Foundation. “The Constitution does not say you have a right to remain silent, and although there is a lot of overlap in those two, they are not the same thing.” But, what about being forced to give information, even if you have the right to remain silent? Ask anyone who has been ordered to give a password or decrypt something whether they thought their right to remain silent was violated!
Can Prosecutors Use Your Silence Against You?
In 2013, the U.S. Supreme Court ruled that the prosecution in any case may comment on your silence and use it as “evidence” of guilt in some cases. While states can choose to give people more rights than federal laws require, the federal laws set the minimum protection required. In the 2013 case it was ruled that a prosecutor may comment in some situations, which could include instances when the suspect is out of police custody (and hasn’t been read his or her rights); voluntarily submits to questioning; or simply stays silent without actually invoking his or her Fifth Amendment rights.
In the Salinas v. Texas ruling, the Supreme Court said that the prosecutor who used a man’s silence as evidence of guilt didn’t violate that man’s Fifth Amendment rights because he “failed to expressly invoke his privilege not to incriminate himself in response to the officer’s question.”
In some states, if you intend to invoke your right to remain silent, it may be a good idea—in light of Salinas v. Texas—to say, “I want to invoke my Fifth Amendment right to remain silent.”
Stanford law professor Jeff Fisher says you need to be explicit.
“Under these decisions, somebody in that situation, just as much as the person accused of murder or manslaughter, needs to announce that they are relying on the Fifth Amendment privilege. It's not enough to simply refuse to talk to police,” says Fisher.
The Bottom Line on Your Right to Remain Silent
It’s almost always a good idea to talk to your Milwaukee criminal defense lawyer before you talk to police. If police attempt to question you, let them know that you wish to invoke your Fifth Amendment right not to incriminate yourself (which you can even do before you’re Mirandized) and that you want to talk to your attorney. As soon as you’re able, call our team of Milwaukee criminal defense lawyers at 414-383-6700 or get in touch with us online. We’ll be happy to give you a free case evaluation and help sort out your situation.