You Must Speak to Assert Your Right to Remain Silent

The phrase “you have the right to remain silent†has become ubiquitous in American culture. However, this phrase does not appear in the 5th Amendment. The 5th Amendment says “… nor shall [any person] be compelled in any criminal case to be a witness against himself.†So, it is not “the right to remain silent†but rather “the right against self incrimination†that is expressly protected in the constitution.

In Miranda v. Arizona, the Court held that the privilege against self incrimination did extend to custodial interrogations. If you are in custody and the cops are asking you questions, they must advise you of your right to remain silent and inform you that anything you do say can be used against you in court. However, the Supreme Court has held that that the mere act of remaining silent is not enough to invoke your 5th Amendment rights.

It is important to understand that there is a difference between custodial interrogations and non-custodial interrogations. Law enforcement officers are not required to communicate the Miranda Warnings in non-custodial situations. The cop need not Mirandize you in order to approach you and ask questions in the course of his investigation. During a custodial interrogation (ie. when you are not free to leave) they must administer the Miranda Warnings. This is usually done by having the suspect sign a waiver but it can also be done verbally.

In Berghuis v. Thompkins, the Court held that the defendant’s remaining mostly silent for over 2.5 hours during a custodial investigation was not sufficient to invoke the right against self incrimination and the few monosyllabic statements he did make could be used against him at trial. In Salinas v. Texas, the defendant participated in a non-custodial voluntary interview with police and answered their questions for most of that interview, but when asked whether the shells found at the crime scene would match his shotgun, he remained silent. The video of his silent reaction to that question was used against him at trial and the Supreme Court ruled that this did not violate his 5th Amendment right against self incrimination.

These rulings show that the Supreme Court has firmly established the invocation requirement for both non-custodial and custodial situations. Even after Miranda Warnings have been issued, it is still necessary to verbally assert your 5th amendment right against self incrimination. The Court has not answered whether a defendant’s silence in a non-custodial situation is admissible where the defendant has verbally asserted his right. To be safe, the best advice is to verbally assert your right to remain silent when being questioned by police, whether in custody or not.

The simplest way to do this is to say, “I invoke my 5th Amendment rights.†Then, do not answer any questions. Your next step should be to contact a criminal defense attorney. The Coon Law Firm is ready and willing to answer your questions. Call us today for a consultation.