The right to remain silent is a constitutional right which is afforded to all individuals in the United States while they are being questioned by the police which is provided by the Fifth Amendment. This means that if an individual has been arrested, they are not required to answer any questions posed by law enforcement.

The protections against self-incrimination provided by the Fifth Amendment prohibit law enforcement from compelling individuals to speak during criminal investigations. In addition, the clause provides that no individual in a criminal case shall be compelled to be a witness against themselves.

This means that an individual cannot be forced to provide evidence which may incriminate themselves. Miranda warnings are required to be given to suspects whenever they are interrogated while under arrest.

Miranda warnings may be given at any time during an interrogation. If, however, the suspect indicates that they desire to remain silent or to speak with a representative of their choice, usually a lawyer, law enforcement is no longer permitted to question the individual regarding the crime they were arrested for.

If, on the other hand, the individual indicates that they wish to waive their right to remain silent, law enforcement may continue questioning them until and unless the individual clearly states they want an attorney.

What are the Miranda Rights?

Pursuant to the United States Supreme Court case, Miranda v. Arizona, whenever an individual is taken into custody and questioned, they must be informed of their Fifth Amendment right against self-incrimination.

Law enforcement is required to read the suspect their Miranda rights, which include:

  • “You have the right to remain silent;
  • Anything that you say can and will be used against you in a court of law;
  • You have the right to an attorney;
  • If you cannot afford an attorney, one will be appointed to you.”

What is the 5th Amendment Privilege against Self-incrimination?

The Fifth Amendment of the United States Constitution provides that “no person shall be compelled to be a witness against himself in any criminal case.” This language has been interpreted to mean that:

  • The privilege against self-incrimination only applies to humans and does not exist for corporations;
  • This privilege applies only in criminal cases and cannot be used in a civil case, with some exceptions;
  • “Compelled to be a witness” occurs only when there is a risk of imprisonment for refusing to testify or produce documents;
  • The prosecution and court can not infer that refusal to testify means an individual is guilty; and
  • Individuals in certain specific relationships are granted immunity from testifying against each other, including but not limited to:
    • spousal relationships;
    • lawyer-client relationships; and
    • doctor-patient relationships.

​​How Do I Use My Right to Remain Silent?

An individual’s legal right to remain silent could potentially protect them from making a mistake that may cost them everything, such as their reputation and their freedom. When an individual is in custody and is being interrogated, law enforcement will typically ask questions regarding other criminal activities that the individual may be suspected of.

In addition, law enforcement will attempt to obtain information regarding other individuals who may have been involved in the same crime or crimes. When a suspect who is in custody invokes their Miranda rights and requests an attorney, as noted above, law enforcement must stop the interrogation until the lawyer arrives unless the suspect initiates on their own communication or conversations with law enforcement.

An individual is permitted to request an attorney at any time, even if a law enforcement officer says they do not need one. It is important to note that an individual must be direct when requesting their attorney.

For example, stating, “I believe I may need to speak with an attorney” would not be a sufficient request to stop an interrogation. Instead, if an individual is being interrogated and wants an attorney, they should affirmatively state, “I want an attorney.”

If they wish to remain silent, the same principle applies. The individual should state, “I am exercising my right to remain silent.” It is important to be consistent when making these statements and not to add any other comments which may sound suspicious or incriminating.

There are no specific words which trigger the right. The standard provides that invocation is sufficient so long as a reasonable law enforcement officer, under the circumstances, would understand that the state is a request for an attorney.

An individual may involve their right to remain silent during:

  • Police interviews;
  • Interrogations; and
  • Trials.

Can I Invoke My Right by Remaining Silent?

No, an individual cannot invoke their right by remaining silent. Due to the fact that silence is ambiguous, it cannot be used because an affirmative, unambiguous statement is required which clearly demonstrates the individual is invoking their right.

Do the Police have to Inform Me of My Rights?

Law enforcement is only obligated to provide the Miranda warning when an individual is arrested and is being questioned. This means that law enforcement is not required to notify an individual of their rights if they are stopped on the street or being asked questions during a routine investigation.

It is important to note that, even if an individual is not under arrest, they should not divulge potentially incriminating information. An individual can always remain silent until they consult with an attorney because anything they say can be used against them in court.

Can My Silence be Construed as Guilt?

If an individual’s case goes to trial, the jury will be provided with specific instructions against construing the invocation of the Fifth Amendment right against self-incrimination as an admission of guilt. It is not uncommon, however, for members of a jury to assume an individual is guilty of a crime because they decided to invoke that right, although they are specifically directed not to consider that issue during their deliberations.

According to the Supreme Court, the prosecution is permitted comment on the silence of a suspect who:

  • Is not in police custody and has not been Mirandized;
  • Voluntarily submits to police questioning; and
  • Remains silent without expressly invoking their Fifth Amendment rights.

The only way to prevent evidence of silence from being admitted at trial is to assert the right to remain silent. This can be done by using the statements and strategies discussed above.

What Things do not Carry 5th Amendment Self-incrimination Protection?

There are a few situations in which the Fifth Amendment does not apply, including:

  • The use of one’s body to incriminate oneself. That is, an individual cannot disguise themselves to avoid being identified;
  • The government can invade an individual’s body to obtain evidence. The government’s need for this evidence must outweigh the individual’s right to privacy; and
  • Examples of incriminating evidence include:
    • footprints;
    • fingerprints;
    • DNA;
    • breath;
    • blood samples;
    • hair;
    • saliva;
    • semen;
    • records; and
    • journal or diary entries.

A strip search requires that the government have a reasonable suspicion of criminal activity. Strip searches must be conducted by an individual of the same gender and be conducted in private.

A body cavity search must not:

  • Endanger health;
  • Cause severe pain or discomfort;
  • Be extremely degrading or humiliating; or
  • Product lasting trauma.

In most cases, a search warrant is required to conduct a body cavity search. In addition, it typically must be conducted by a medical professional.

Do I Need a Lawyer?

If you feel that your constitutional rights related to the Fifth Amendment have been violated, you should consult with a government lawyer as soon as possible. Your lawyer can review your case, determine if your rights were violated, and preserve any legal remedies which may be available to you.