Home » Criminal Law » ABOUT THE “RIGHT TO SILENCE.”


Posted by:  Edmund R. Folsom, Esq.

September 6, 2016


To begin, this post is for informational purposes only.  It is not legal advice and is not to be considered legal advice.

A few years back, to inform the uninitiated, I wrote a blog post on why it’s a bad idea to just walk into court and plead guilty at arraignment https://edfolsomlaw.com/2012/11/why-is-it-a-bad-idea-to-walk-into-court-and-plead-guilty-at-arraignment/.  The criminal justice system works in counter-intuitive ways that are particularly dangerous for those who do not understand them.  The system often does not reward the docile and compliant– sometimes it punishes them for being docile and compliant.   A person who feels ashamed about breaking the law might feel morally bound to admit her guilt the first time a judge calls on her to answer to a criminal charge.  The person might think “I did what they say I did.  It would be dishonest to plead not guilty, because that’s like saying I didn’t do it– I’m not going to lie to the judge.”  That’s laudable thinking, to be encouraged just about everywhere outside the criminal justice system.  It’s the kind of thinking that makes honest people honest.  But inside the criminal justice process, that kind of thinking makes you a sap.  Pleading “not guilty” has nothing to do with claiming actual innocence.  Pleading “not guilty” simply means you are preserving your rights against the government.  It signals that you choose, at least at that point, not to submit yourself to an adjudication of criminal guilt and throw yourself on the court’s mercy in sentencing.  In the criminal justice process, the words “not guilty” carry no moral connotation, but because the words sound to an ordinary person like a declaration of actual innocence, they can be a trap.   When you enter the criminal justice system, you enter a parallel universe.  Your mission should be to escape that universe as unscathed as possible, and never return.  Those who have been around the block a time or two understand this.  Although they have failed to remain out of the system’s clutches, at least they know the ropes better when they return.

The arraignment process isn’t the only time when misunderstanding is dangerous in the criminal justice system.  In fact, misunderstanding is dangerous at all points.  Here, I will focus on the dangers that lurk in misunderstanding the “right to silence.”   Sometimes you have one, automatically and without question; other times you might have one, but you can’t benefit from it unless you clearly invoke it; and sometimes there’s no such thing.  First, though, let’s return briefly to the arraignment process.

As part of our moral upbringing, we are taught that honesty is a virtue and dishonesty is a vice.   As discussed above, that can be a trap for a person who is asked by a judge at arraignment if she is guilty or not guilty.  A person who thinks a declaration of “not guilty” would amount to a lie might feel compelled to say “guilty.”  But with a declaration of “guilty” in the bag, the only thing left for the judge to do is impose sentence.   The time is gone for explanations about why the person did what she is accused of, but only because there were mitigating circumstances that she hopes will be considered in allowing her to avoid conviction.  If the person had understood what “not guilty” really means, she probably would have pled “not guilty.”  That would have given her the chance to see what the State’s evidence was, meet with a lawyer to discuss the case (even if it was only the lawyer of the day in the courtroom), or maybe even talk to a sympathetic Assistant D.A., who might have dismissed some charges for a plea to another, or offered a filing or deferred disposition that would have allowed her to avoid a conviction altogether.   Again, what the world has taught us about honesty and decency can misinform us in the disorienting universe of the criminal justice system.  The aliens who occupy this space speak ordinary sounding words, but the words have unfamiliar meanings.

The Right to Silence During Custodial Interrogation.

Life also teaches us that, when we are confronted with an accusation, if we refuse to answer and deny it, the accuser and everyone else will probably think we did what we are accused of.  Everyone understands this.  A person accused of stealing at work had better at least deny the accusation, or the job is gone.  Failure to deny is as damning as an outright admission.  Your silence will most definitely be used against you.  And yet, if the same person is arrested for the same theft and is interrogated about it by the police while in custody, nothing the person says in response to interrogation may be used against him unless he is first read Miranda warnings.  The first thing the Miranda warnings tell the person is “You have the right to remain silent.”  The next thing is “Anything you say can and will be used against you in a court of law.”  What does that mean?  Obviously, it means the person doesn’t have to speak and, if he does speak, whatever he says can and will be used against him in court.  But does it also mean that if the person refuses to answer questions the State won’t be allowed to tell a judge or jury he refused to answer?  Does it mean the person can fail to deny the charge without having the judge or jury hold that against him?  It can’t really mean that, can it?  Surely if the person doesn’t answer questions, the judge or jury will be told he was given a chance to deny the charges and didn’t, which will make the judge or jury think he must have committed the theft.  So, if the person wants any chance of getting out of this mess, he’d better start explaining, right?   Actually, that’s not right.  In fact, if the person refuses to answer questions in those circumstances, the State cannot introduce that fact into evidence.  A jury is not allowed to know that the person refused to answer questions, and a judge is not allowed to hold it against the person.  This is the criminal justice system– a parallel universe, where the lessons life has taught us are often turned inside out, and where police are skilled at exploiting our disorientation.   Here is the bottom line:  the Miranda ruling dictates that police cannot use your silence in the face of custodial interrogation– including any failure to deny the charge– against you.    The Miranda ruling is the sole reason your silence during custodial interrogation can’t be used against you.  On the other hand, anything you do say after being read Miranda warnings can and will be used against you in a court of law.

But what happens if you only tell the truth, and the truth is that you didn’t do what you are accused of– how can that be used against you in a court of law?  Shouldn’t you jump at the chance to clear up this great misunderstanding?  Surely the police will realize their mistake, shake hands with you and bid you fond adieu if you just explain things to them, right?  No… A person should take the Miranda warnings literally, and expect that anything he says will be used against him in court.   Suffice it to say that only a person who talks to the police in the first place will later have to explain “That’s not what I said!” or “That’s not what I meant!”

The Right to Silence When Police Question a Person Who is not in Custody.

All of that said, the rules of Miranda only apply to circumstances of “custodial interrogation.”  For purposes of this discussion, consider “custodial interrogation” to exist whenever a person is questioned by police while under arrest.   This brings us to another one of those things a person might think he knows; this time from watching television shows, movies, etc., where police read Miranda warnings to suspects.  All those T.V. shows and movies, combined with knowledge that there is a 5th Amendment privilege against self-incrimination– “No person shall be…compelled in any criminal case to be a witness against himself”– might lead people to believe they have a right to silence that comes into play any time a police officer wants to ask them questions.  Again, after all, the first thing the Miranda warnings tell us is “You have the right to remain silent.”  But because those Miranda warnings only apply when a person is subjected to custodial interrogation, Miranda‘s right to remain silent also only applies when a person is subjected to custodial interrogation.  In any context other than custodial interrogation, the only right to remain silent that can possibly come into play comes from the person’s 5th Amendment privilege against self-incrimination.

Let’s examine how the 5th Amendment “right to silence” works.   A plurality of the U.S. Supreme Court, in Salinas v. Texas, 570 U.S. __, 133 S.Ct. 2174 (2013), informed us that outside the context of custodial interrogation there is no such thing as an unqualified right to remain silent, only the right not to be compelled in a criminal case to be a witness against yourself.  To benefit from the 5th Amendment right, a person must do something to invoke it.  In other words, when a person is not under arrest, ordinary experience is pretty good at teaching us what happens when a person fails to deny an accusation– the police get to use the person’s failure to deny against him… except when the person clearly invokes the 5th Amendment privilege.  If a person clearly invokes the 5th Amendment privilege, then maybe the government won’t be allowed to use against him his failure to talk to police or to deny the allegation.  What does it take to invoke the 5th amendment privilege?  Something like “I wish to exercise my 5th Amendment privilege against compelled self-incrimination” is probably the safest thing to say, but “I wish to exercise my right to remain silent” might do.   Salinas demonstrates that if a person falls silent and starts acting sketchy in the face of uncomfortable police questions, his silence and sketchiness can be used against him.   The trick, then, is to  flat-out invoke the 5th Amendment privilege as soon as police attempt to begin a discussion.  If a person says enough to convince a court later on that he unambiguously invoked his 5th Amendment privilege, the police will not get to use against him his refusal to talk to them or to deny their allegations.  These are our rights, average Joe and Jane.  How much good can they do for a person who doesn’t know them?  Welcome to the criminal justice system.

Can Your Lawyer Talk to the Police and Prevent Them from Bothering You?

Oh, and by the way, don’t think that a lawyer can shield you from police attempts to question you.  While it’s true that you have the absolute right not to speak to police without a lawyer being present, your lawyer cannot insulate you from police attempts to question you in the future.  Anyone who is “in custody” and requests a lawyer during police questioning can’t be subjected to custodial interrogation again for at least 14 days, but that’s because the person in that circumstance who asks for a lawyer invokes his  Miranda right to counsel.   Anyone who is not “in custody” during police questioning does not have a Miranda right to silence or a Miranda right to counsel.  As discussed above, any person who is not in custody and does not wish to talk to police must expressly invoke his 5th Amendment right against compelled self-incrimination.  Otherwise police will be allowed to use his silence as evidence against him.

If a Person’s 6th Amendment Right to Counsel has Attached, He Doesn’t Have to Invoke His Right to Silence– He Can Simply Remain Silent.

Wait a minute, though… If the person has been indicted or has appeared in court on the charge that the police wish to discuss, another constitutional right comes into play.   The person’s 6th Amendment right to the assistance of counsel is deemed to have “attached” once a person has been indicted or has made a court appearance on a charge.  That means, even if the person is free on bail, the police can’t “deliberately elicit” statements from him unless they first secure an intentional and knowing waiver of his right to the presence of counsel.   So, anyone in that circumstance can simply choose not talk to police, and the police will likely not be allowed to use his silence or refusal to speak against him.  There is no need for the person to use any magic words to invoke his 5th Amendment privilege, because the person is shielded already by the 6th Amendment right to counsel.   Still, any lawyer who has been retained or appointed to represent the person cannot keep the police from returning and trying, later on, to talk to the client.   Instead, it will be up to the person, on each approach by police, to rebuff them, by simply refusing to speak to them or by actively requesting the presence of his attorney before questioning.  This is all so confusing isn’t it?

But if Police Attempt to Question on a Matter on which the 6th Amendment Right to Counsel Has not Attached, Invocation of the 5th Amendment Right Will be Necessary.

Remember, a person who is not in custody and has not yet been indicted or been to court to face the particular charge (6th Amendment right to counsel has not attached as to that charge), will have to specifically invoke his or her 5th Amendment right against compelled self-incrimination to avoid having his refusal to speak used against him.   This means that if a person’s 6th Amendment right to counsel has attached on charge A, but has not attached as to charge B, and if the police approach him to speak about charge B, he will need to actually invoke his 5th Amendment right to ensure that his silence or refusal to speak can’t be used against him as to charge B.

Where Does That Leave Us?

Get this:  When it comes to being questioned by police, anything you say will be used against you.  Sometimes what you don’t say will be used against you.  If you ask for a lawyer, sometimes police are required to immediately stop trying to question you and can’t try again for at least 2 weeks.  Other times, you don’t even have to ask for a lawyer to prevent police from questioning you without one.  But your lawyer can’t prevent police from approaching you, to try to get you to talk to them in the lawyer’s absence.   For anyone who wishes not to talk to police and not to have her silence used against her, the safest bet is to expressly invoke both her 5th Amendment right against compelled self-incrimination and whatever right to counsel might apply in that circumstance– Something like:  “I wish to invoke my 5th Amendment right against self-incrimination and I do not wish to speak to you without an attorney” should do.   Got that?  These are our rights.  Welcome to the criminal justice system.  Perhaps you should let a criminal defense attorney be your guide.