When do you have the right to remain silent and how should you invoke it?

We’ve all seen it on TV or social media. A suspect is taken into custody and the police read them their rights. The first among those rights is the right to remain silent, which typically includes the admonition that anything you say can and will be used against you in a court of law. While the right to remain silent is most critical during police custody, it is a right a person may—and should—invoke any time they have contact with law enforcement.

Derived from the Fifth Amendment’s prohibition against compelled self-incrimination, the right to remain silent is a fundamental safeguard against government overreach and police tactics designed to pressure suspects into giving confessions. The right to remain silent applies both in and out of the courtroom. There are three broad contexts in which the right to remain silent may be invoked, each with their own set of rules:  

1. during noncustodial contact with law enforcement

2. during custodial interrogation

3. in the courtroom

The right to remain silent applies to any law enforcement related contact.  You do not have to say anything to police, or to any other type of law enforcement agent, with the exception that you must clearly and unequivocally communicate your desire to remain silent. Simply staying silent, standing alone, is not enough, and police are not required to cease questioning absent a clear and unambiguous invocation. The importance of remaining silent at this stage of any investigation cannot be overstated. Nearly anything you say to police can and, in fact, will be used against you in court, so the wisest course, as any attorney will tell you, is to invoke your right to silence and say nothing.

Custodial interrogation is where the right to remain silent is most pressing. If you are in custody, you are on notice that the police view you as a suspect. By controlling your movement and environment, they clearly have the upper hand. This is the point at which Miranda rights must be read to you (once you are in custody but before you are interrogated). After Miranda rights are read, you may, but are not required to, invoke this right; the burden, however, is now on the State to show you understand your rights, understand the consequences of waiving your rights, and have unambiguously waived them. Again, it rarely benefits a suspect to talk to the police, especially in a custodial context, and especially without counsel to guide you. If you refuse to waive your rights, or at any time invoke your right to remain silent, the police must stop questioning you. Moreover, even if you do waive your rights, you do not forfeit them. You may still cut off questioning at any time. The right to remain silent allows you to control when the questioning occurs, what subjects are discussed, and the duration of the interrogation.   Your right to cut off questioning must be “scrupulously honored” by the police or anything you say will not be admitted as evidence at trial.

A witness cannot be forced to testify if there is any reasonable chance their testimony could be used against them in a trial. There are some notable exceptions. One example is “use” immunity. The prosecutor can ask the Court for use immunity and if granted, you can be forced to testify. In return, nothing you say can be used against you as evidence in any prosecution.

Conclusion

The right to remain silent is one of the most important rights in the U.S and Wisconsin Constitutions.   What you say to the police during an investigation will often determine the outcome of a trial.  Remaining silent not only deprives the State of potential  evidence against you, it provides an opportunity to obtain the legal representation you will need to navigate the complexities of a criminal case to a positive result.

Written by Attorney Steve Miller