What are the Miranda Rights? The Right to Remain Silent
Updated: Mar 24
“You have the right to remain silent. Anything you say can and will be used against you in a court of law.” – The Miranda Warning
"No person shall be … compelled in any criminal case to be a witness against himself…” – The Fifth Amendment to the US Constitution.
The right to remain silent originates in the freedom from self-incrimination enshrined by the Fifth Amendment of the Constitution. The right to remain silent is usually the first right mentioned when the police are giving the Miranda Warning, often during an arrest. Once the police inform a defendant of the right to remain silent, the defendant should avoid speaking as much as possible. Statements made after this point can be used by the police against the defendant in court. While there are some limited exceptions to this, defendants and even witnesses should be careful about what they say to the police. Witnesses may also invoke their right to remain silent.
When the defendant or witness speaks after being informed of their rights, they are considered to have waived their right to remain silent. The defendant may also invoke the right to remain silent. Even if a defendant decides to speak with the police during an interrogation, the defendant can still decide not to speak any further at any time and invoke the right to remain silent, usually by pleading the fifth and/or requesting an attorney. Even if they do, however, everything said prior invoking the right to remain silent will usually be deemed admissible in court. If the defendant decides to speak after invoke the right. Waiving the right to remain silent is risky not only because defendants might incriminate themselves, even when innocent, but because if a defendant or witness misstates or poorly explains something, the prosecution can use those statements to impeach the defendant or witness, harming their credibility before the jury should the case go to trial. Remaining silent is one of the best way defendants can protect themselves and their rights.
There is a common misconception that only a guilty person can invoke the right to remain silent and to avoid self-incrimination, however, this is not the case at all. Even an innocent defendant should consider remaining silent, as things they say could be misunderstood by the police, create confusion about the facts of the case, and even falsely incriminate the defendant. The police do an important job in our society, but they are expected to fill many roles, and interrogator is one of those rolls. As jacks of many trades, the police make mistakes which can distort the comments of a defendant. It is best if a defendant avoids speaking with the police, at least until an attorney is present. Every defendant should strongly consider remaining silent.