Right to Remain Silent

Do I have to declare my right to remain silent or mere silence is good enough?

Everyone watched TV shows and Hollywood movies where policemen say: “You have the right to remain silent. Anything you say can be used against you in court.” Most of the time, the screenplay writers in Los Angeles make up the law and the rules of Criminal Procedure to dramatize the events on the screen. In this case, however, the line does come from a famous case. It’s called Miranda v. Arizona.It requires that law enforcement officers advise arrested suspects of certain rights, including the option of saying nothing. ((1966) 384 U.S. 436.) Miranda, is based on the Fifth Amendment privilege against self-incrimination.

In addition to the right to remain silent, this legal principle applies to the practice of officers telling arrests that:

  • what they say can be used against them in court
  • they have the right to consult with a lawyer
  • a lawyer can be present during questioning
  • a lawyer will represent them free of cost if they can’t afford but want one, and
  • if they decide to answer police questions, they can stop the interview at any time.

(All this applies to the situations where suspects are not in jail. There are slightly different rules for people who have been arrested already).

When Must the Police Advise You of Your Rights?

Officers must provide Miranda warnings whenever they interrogate someone who is in custody.  Simply put, it means that the person whom officers are questioning is not free to leave and should feel under pressure. Interrogation includes anything that may force suspects make statement that may hurt them later on and in a court of law.

Why are Miranda warnings so important? Because the prosecution cannot use a suspect’s silence at the time of arrest or interrogation as evidence of guilt. If a suspect did not say he or she was not guilty at the time of arrest, it is totally fine. The suspect can say that he is not guilty later on with a lawyer when things settle down. Now, what if a police officer is casually talking to a person who is not a suspect yet officially and seemingly does not have any pressure to provide any information to the police? In that case, officers do not have to mention Miranda rights to them at all. Would not that we strange if every police officer would have to start a conversation with anyone from saying: “You have the right to remain silent….” Policemen use that to get information about the incidents they investigate.  The Miranda rights only kick in when a suspect is “not free to leave”.

You Can’t Be Silent if You Want to Be Silent


In a closely contested 2013 decision, the United States Supreme Court held that prosecutors can, under appropriate circumstances, point to an out-of-custody suspect’s silence in response to police questioning as evidence of guilt. (Salinas v. Texas, 133 S. Ct. 2174 (2013).) According to the Court, the prosecution can comment on the silence of a suspect who:

  • is out of police custody (and not provided Miranda rights)
  • voluntarily submits to police questioning, and
  • stays silent without expressly invoking his Fifth Amendment rights.

The only way to prevent the government from using evidence in court of the suspect’s silence is to explicitly mention the right to say nothing. Does that mean that every suspect must memorize the exact line: “I hereby invoke my Fifth Amendment right to remain silent!”? No, a suspect just has to say that he will remain silent because he has a right to do so.  Based on the law, such a statement will not mean that the suspect has something to hide.  However, the privilege against self-incrimination has to be evoked immediately.  Surely, people who watch a lot of movies about detectives and courtroom shows like Judge Judy would know the exact language. People who never get in trouble and never lay their hands on Constitutional Law and Criminal Procedure books would not know that.  However, the self-incrimination language has to be mentioned specifically. Otherwise, even if remained silent, prosecutors may interpret the reaction on certain questions at trial in their favor. That’s what the new 2013 Supreme Court case means.

Regardless of the outcome, please find the best criminal attorney on our site here or through our mobile app and call them to ask questions.


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