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Right to Remain Silent: Safeguarding Justice in Legal Proceedings

Ben Michael

You’ve probably heard it many times on crime dramas like “Law and Order: Special Victims Unit”—“You have the right to remain silent.” This isn’t made-up dialogue, though. It’s the beginning of a constitutionally required phrase that protects the rights of U.S. citizens who are under arrest.

Once an arresting officer has read someone their Miranda rights, including “the right to remain silent,” the person who’s been arrested is guaranteed the right to remain silent and to request an attorney. In other words, you don’t need to undergo questioning by law enforcement officers after the arresting officer has explained your Miranda rights.

The Essence of the Right to Remain Silent

The right to remain silent applies to police interviews, police interrogations and trials.

This right falls under the Fifth Amendment, which says that no one “shall be compelled in any criminal case to be a witness against himself.” A law enforcement officer must read Miranda rights to a criminal suspect only if the officer wants to question or interrogate the suspect after they’ve been arrested or detained. The language looks something like this:

You have the right to remain silent.

Anything you say can and will be held against you in a court of law.

You have the right to an attorney.

If you cannot afford an attorney, one will be provided for you.

Do you understand the rights I have just read to you?

Meanwhile, the Sixth Amendment protects a suspect’s right to an attorney.

Miranda rights primarily come into play in criminal cases. Under the Constitution, prosecutors can’t force a defendant to testify during their criminal trial. Therefore, the defendant holds the right to remain silent before and during the trial. After a suspect has invoked—or explicitly stated—their right to silence, anything they say can’t be used as evidence in court.

The Roots of the Right to Remain Silent

The concept of “the right to remain silent” dates back to the early 1960s.

In March 1963, an 18-year-old Phoenix woman told police she was kidnapped and raped. After police officers picked up 24-year-old Ernesto Miranda at his home, the woman identified Miranda as her attacker as part of a lineup at a police station. For two hours, a pair of police officers questioned Miranda. During the interrogation, the officers didn’t inform Miranda of his Fifth Amendment protection against self-incrimination (the right to remain silent) or his Sixth Amendment right to an attorney.

Miranda subsequently confessed to the crimes, and this confession played a key role in his conviction on kidnapping and rape charges. In 1963, a judge sentenced him to 20 to 30 years in prison on each count. Miranda also was convicted and sentenced on a separate robbery charge. Altogether, his prison sentence totaled 55 years.

In an appeal to the Arizona Supreme Court, Miranda’s attorney argued that his client’s Fifth and Sixth Amendment rights had been violated. However, the court upheld the conviction. The appeal eventually headed to the U.S. Supreme Court, which combined Miranda’s appeal with three similar cases.

In Miranda v. Arizona, the nation’s highest court ruled 5-4 in 1966 that a person who’s under arrest enjoys the right against self-incrimination under the Fifth Amendment and the right to an attorney under the Sixth Amendment. The landmark decision resulted in the now commonplace “Miranda rights” requirement during the arrest of a criminal suspect.

These rights cover:

  • The use of a suspect’s words against them in a court case.
  • A suspect’s right to seek help from an attorney.
  • A suspect’s right to have an attorney in the room during police questioning.
  • A suspect’s right to free legal representation if they can’t afford to hire an attorney.
  • A suspect’s right to halt a police interview whenever they want.

It’s worth noting that the right to remain silent does not apply to one law enforcement officer or prosecutor who is questioning you. As long as you invoke this right, it covers any questioner, not just the one who initially heard you express your right to remain silent.

The Right to Remain Silent vs. Interrogation Techniques

Law enforcement officers employ a variety of interrogation techniques when they’re questioning a criminal suspect. The Innocence Project says these techniques include:

  • Intimidation
  • Force
  • Coercion
  • Deception
  • Isolation during questioning
  • Lying about evidence

The Innocence Project says these tactics can result in false confessions. On average, people who falsely confessed were interrogated for up to 16 hours before admitting to a crime they didn’t commit, the organization says.

The most common interrogation practice among law enforcement agencies is the Reid interrogation technique. This process seeks to gain information and a confession from a suspect through factual analysis, interviewing and interrogation.

Regardless of which interrogation techniques are used, the constitutionally protected right to remain silent offers a vital safeguard against self-incrimination. The Legal Information Institute defines self-incrimination as “the intentional or unintentional act of providing information that will suggest your involvement in a crime, or expose you to criminal prosecution.”

Silence at Trial

The right to remain silent applies not only while someone is in police custody but when their case goes to trial.

At trial, a defendant can “take the Fifth” or “plead the Fifth,” exercising their Fifth Amendment right to not give any court testimony that would implicate them in a crime. This doesn’t translate into an admission of guilt, though. In fact, a suspect’s decision to exercise their right to silence before or during a trial can’t be used as evidence against them.

A witness also can “invoke the Fifth” during a criminal trial, a civil trial or a court deposition if they believe their testimony would put them in a negative light or be used against them in a criminal proceeding. Interestingly, a jury can take into consideration a defendant’s or witness’ silence in a civil case.

Some legal experts maintain that innocent defendants benefit from the silence of guilty defendants because jurors will believe alibis from “innocent defendants” but dismiss alibis from “guilty defendants,” according to a paper published by the Iowa Law Review. Other experts, however, insist that remaining silent supports only those defendants who are actually guilty.

Miranda Rights: The Right to Remain Silent in Custody

When you’re in the custody of law enforcement, you retain the right to remain silent thanks to your constitutional Miranda rights. However, you must clearly state that you are maintaining your right to remain silent and that you want an attorney. Otherwise, you effectively give up that right.

Since the U.S. Supreme Court ruling in Miranda v. Arizona, the court has clarified the right to remain silent. In a court case known as Raffel v. U.S., the nation’s high court decided that once a suspect starts cooperating with law enforcement and answers questions or agrees to a search, they give up the right to remain silent and must keep cooperating with law enforcement.


In some instances, you might gain the right to remain silent about some aspects of a court case in exchange for your testimony.

Let’s say someone participates in an alleged drug deal. Sometimes, a prosecutor may be more interested in convicting the leader of the drug ring involved in that deal than in convicting a lower-level witness or participant. So, the prosecutor may grant this witness immunity against facing charges if the witness testifies against the alleged leader of the drug ring.

Under this sort of arrangement, the witness could secure the right against incriminating himself or herself during court testimony. Therefore, the witness would be able to remain silent about his or her own alleged involvement in the crime.

Failure to Invoke the Right to Silence

Merely staying silent or using body language to indicate your silence isn’t good enough to formally invoke your right to silence. Instead, you must clearly state in some way that you are invoking your right to silence. This could be as simple as saying something like “I am exercising my right to remain silent” or “I want to speak to an attorney.”

By the way, you can invoke the right to silence before a law enforcement officer reads your Miranda rights to you. And if you’re not sure whether an officer understood or heard that you invoked your right to remain silent, you can repeat your desire to invoke this right.

If you fail to invoke your right to remain silent, it could lead to trouble. In 2013, the U.S. Supreme Court ruled that a suspect’s silence can be used against them in a criminal case.

In this Supreme Court case, the suspect volunteered to answer some of an officer’s questions about an apparent murder. However, the suspect hadn’t declared his right to remain silent. Instead, he just stayed quiet after the officer posed one of his questions. At the suspect’s murder trial, prosecutors used this silence as evidence of guilt.

The Supreme Court subsequently decided that using this silence against the defendant did not violate his Fifth Amendment rights. Why? Because the defendant had failed to invoke the right to remain silent.

Limitations and Exceptions

The right to remain silent involves a few limitations and exceptions when law enforcement can legally question someone without that person first being read their Miranda rights. Among them are:

  • General questions asked as part of the process of booking someone into jail.
  • Questions asked during a public emergency, such as a hostage negotiation. In a hostage situation, for instance, law enforcement can question the hostage-taker, even if the hostage-taker has asked for an attorney but the attorney hasn’t arrived yet.
  • Questions asked after someone volunteers to waive their Miranda rights and agrees to be interrogated while in custody.
  • Questions asked after someone attempts to invoke their Miranda rights before they are in custody and an interrogation is happening or is about to happen.

Interplay with Other Rights: Right to Counsel and Due Process

The right to remain silent is related to other constitutional rights, especially the right to counsel and the guarantee of due process.

Right to Counsel

Under the Constitution’s Fifth and Sixth amendments, a criminal defendant is given the right to counsel. This means that in most criminal matters, a defendant enjoys the right to be represented by an attorney who is either hired or appointed.

The right to counsel is not automatic, though. A criminal suspect must state that they’re exercising their right to counsel. Under the Miranda decision, a law enforcement officer must inform a suspect of their right to an attorney. However, the officer isn’t required to ask if the suspect wants an attorney.

Also, someone can waive their right to counsel. For example, they might do so if they decide to serve as their own attorney.

Guarantee of Due Process

One part of the Fifth Amendment refers to due process, which is related to the right to remain silent.

The amendment states that no one can “be deprived of life, liberty or property without due process of law.” In the context of criminal cases, due process requires courts and governments to be lawful and fair in their decision-making. For example, due process demands that a prosecutor reveal any evidence indicating that a criminal defendant might be innocent.

If you believe your right to remain silent has been violated by law enforcement, it’s wise to seek guidance from a criminal defense attorney. A criminal defense attorney can raise issues about the alleged violation and might even be able to get criminal charges dismissed if it’s determined that your rights were violated.

Keep in mind that when you’re in custody, you’re given the right to an attorney, and that attorney can help you build a strong defense against any criminal charges that you might face.

FAQs About the Right to Remain Silent

Can Remaining Silent Be Used Against Me in Court?

In some cases, remaining silent can be used against you in court. In a 2013 case, the U.S. Supreme Court ruled that a suspect’s silence during questioning by law enforcement could be used against them during a criminal trial if the suspect didn’t give a reason why they were staying silent.

What Happens if I Waive My Right to Remain Silent?

If you waive your right to remain silent, whatever you say can be used against in court.

When Should I Invoke My Right to Remain Silent?

The ideal time to invoke your right to remain silent is when law enforcement officers start to question you while you’re in custody.

Can My Silence Be Interpreted As Guilt in Court?

If you’re a cooperating suspect, your silence during law enforcement questioning can be interpreted as guilt in court.

Can Law Enforcement Continue Questioning Me After I’ve Invoked My Right to Remain Silent?

Generally, law enforcement cannot continue questioning you after you invoke your right to remain silent. But there are some exceptions to this. For instance, law enforcement can ask routine questions — such as “What is your name?” and “What is your date of birth?” — that would not result in a suspect’s self-incrimination.

Ben Michael

Ben has vast experience in defending criminal cases ranging from DWIs to assault, drug possession, and many more. He has countless criminal charges dismissed and pled down. Among many other awards, one of the Top 10 Criminal Defense Attorneys in Texas and winner of Top 40 under 40.

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