What Does Your Right to Remain Silent Mean?

Common Juror Errors That Are Grounds for Filing an Appeal

The right to remain silent is something most people are familiar with, regardless of whether they’ve ever had an encounter with the police. The right might seem quite straightforward, but it can be a lot more complicated than you might realize. If you or a loved one are facing criminal charges and were not advised of your rights or given a Miranda warning, contact an experienced criminal defense lawyer to discuss your legal options.

The Fifth Amendment

The right to remain silent as we understand it now comes from a U.S. Supreme Court case from 1966 called Miranda v. Arizona. However, the right itself comes from the Constitution. Specifically, it’s found in the Fifth Amendment, which states that citizens are protected from self-incrimination. This statement means a person can’t be forced to testify or give evidence against their own interests. Rather, it’s up to the police to find evidence and up to the prosecution to prove beyond a reasonable doubt that someone is guilty of a crime.

Although this right existed long before Miranda v. Arizona, it wasn’t until this case that the Court made it clear that police are required to inform people they take into custody of their right. The concern was that not everyone understands their right against self-incrimination and that without police telling them they had an option not to answer questions, an individual might speak out against their own interests.

Today, police are required to give a Miranda warning, which is also sometimes called “reading someone their rights.” Police must tell a person they have in custody that they have a right to stay silent, that anything they say could be used against them in a court proceeding, that they have a right to a lawyer during any police questioning, that they have a right to a free lawyer if they can’t afford one, and that they can stop answering police questions at any point.

When Do Police Give a Person Their Miranda Rights?

A police officer is required to inform a person of their Miranda rights if they take the person into custody and ask the person questions. This question and answer process is called an interrogation.

It’s important to understand what being “in custody” means. Courts have interpreted this to mean that a person is in police custody if they’re not free to leave.

As a result, the police don’t have to tell a person their Miranda rights if the person isn’t in police custody. This distinction can lead to confusion for some people, who might believe they have no choice but to answer questions posed to them by police.

Additionally, someone might think the police have taken them into custody even if the police have no intention of detaining them.

When You Have to Invoke Your Right to Remain Silent

There are also situations in which an individual must explicitly state that they want to invoke their right to stay silent. In a 2013 U.S. Supreme Court case called Salinas v. Texas, the Supreme Court ruled that prosecutors could introduce evidence that a criminal defendant chose to remain silent as evidence of the defendant’s guilt. In a 5-4 decision, the Court stated that a person’s refusal to answer police questioning could be introduced as evidence, which could indicate the person’s guilt.

In Salinas, because the defendant didn’t overtly speak up and say he wanted to invoke his Fifth Amendment right against self-incrimination, the Court said it was permissible for prosecutors to submit evidence about how he stayed silent during police questioning.

Critics of the Court’s decision in Salinas say it’s unfair to require someone in police custody to tell police they want to claim their privilege against self-incrimination. Not everyone understands the law, and many people understandably feel nervous and overwhelmed when they’ve been detained by police or arrested. Police interrogations can be intense, and there have been cases in which individuals have been held for hours in a small interrogation room without food, water, or access to a bathroom.

To protect yourself, the American Civil Liberties Union advises everyone to explicitly say they want to exercise their Fifth Amendment right to stay silent if they intend to use it. After the Supreme Court’s ruling in Salinas, it’s important to make sure the police know you don’t want to answer their questions. This way, prosecutors can’t introduce evidence of your refusal to answer questions.

If you’re detained by police or taken into custody, you should stay calm and ask the police why they stopped you. It’s important to be respectful, but you don’t have to consent to any searches if the police ask you for permission to search you or your vehicle. If the police start searching you or your vehicle without your consent, it’s best to cooperate rather than fighting back or resisting, as this could result in you getting injured. Instead, contact a criminal defense lawyer as soon as possible to discuss your options.

Dallas Best Criminal Defense Attorneys
Broden & Mickelsen, LLP
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  1. https://www.law.cornell.edu/constitution/fifth_amendment
  2. https://www.oyez.org/cases/1965/759
  3. https://www.oyez.org/cases/2012/12-246
  4. https://www.theatlantic.com/politics/archive/2013/06/supreme-court-salinas-v-texas-ruling-explained/314145/
  5. https://www.aclu.org/know-your-rights/what-do-if-youre-stopped-police-immigration-agents-or-fbi


Prior results cannot and do not guarantee or predict a similar outcome with respect to any future case.

Mick Mickelsen is a nationally recognized criminal trial attorney with more than 30 years of experience defending people charged with white-collar crimes, drug offenses, sex crimes, murder, and other serious state and federal offenses.