Last Updated on September 12, 2024
Anyone familiar with the US Constitution knows that the Fifth Amendment protects citizens against self-incrimination. However, most people don’t know that the Supreme Court has ruled that your silence can be incriminating if you do not directly state that you are using this constitutional right. Failing to invoke your rights while staying quiet is considered “admission by silence,” allowing prosecutors to argue that an innocent person would contradict police officers who accused them of a crime. You can still protect yourself from self-incrimination, but counter-intuitively invoking your right to remain silent means you must speak up.
Can a Defendant’s Silence be Used Against Him in Court?
A significant turning point in the application of Fifth Amendment rights started with the 1992 murder of two brothers. A man named Genovevo Salinas was brought in for police questioning but not read his Miranda rights, as he was not officially under arrest. This type of informal questioning is a common tactic police use to get confessions because it allows police to talk to suspects without reading them their Miranda rights. This method benefits investigators because many people who might remain silent if they’ve been placed under arrest feel free to keep talking when they don’t think they’re a suspect.
Salinas casually answered police questions until they asked him whether the shotgun in his home would match the shells at the crime scene. At that point, Salinas recognized that he was a suspect in the murder, so he fell silent. Later in court, that silence was used as an admission by Salinas.
He appealed the case on the grounds that when prosecutors claimed he made an admission by silence, they violated his Fifth Amendment rights. Unfortunately, the Supreme Court ruled that to gain the benefits of your right to silence prior to being read your Miranda rights, you have to actually state that you are invoking these rights.
Does Silence Prove Guilt?
While the Constitution says that you have the right to remain silent to protect yourself from further incrimination, most people agree that if an innocent person has been accused of a crime, their natural impulse is to deny the allegations. While this theory says that only a guilty person will stay silent, our constitution guarantees you the right to protect yourself from self-incrimination, so you must be able to use your Fifth Amendment to remain quiet. The Supreme Court has tried to maintain the Fifth Amendment while still allowing prosecutors to argue that someone who was innocent would have fought against the allegations.
Unfortunately, the idea that someone is admitting guilt simply by keeping silent overlooks the chance that someone is naturally prone to silence because they are neurodivergent, have a mental or physical disability, or are in shock. Fortunately, if you failed to invoke your rights, your attorney can point out these possibilities (when applicable) to defend you if prosecutors try to argue that your silence is a sign of guilt.
While many people believe it is wrong that your silence can be used against you in court, just as it seems questionable that police can “informally” interrogate suspects without reading them their Miranda rights, but until the Supreme Court renders a decision that invalidates their previous rulings on the matter, this is how the law stands.
How to Invoke Your Right to Silence
The Salinas decision shows how important it is for the public to understand their rights. Many people mistakenly believe they can remain silent whenever they have been accused of a criminal act, but if you have not been Mirandized, this silence can be used against you in court. If the police are questioning you, you need to do two things —announce that you would like to speak with your lawyer and that you are invoking your right to remain silent.
Upon hearing this, many people wonder how they can invoke Fifth Amendment rights. There are many ways to do this, but it must be clear to law enforcement officers so there is no question about your intent. Common ways to ensure you will not be accused of making an admission by silence if the case goes to trial include telling officers:
- I am asserting my 14th Amendment
- I would like to take advantage of my Miranda rights
- I am using my constitutional right to silent
- I refuse to answer any questions without my attorney present
- I won’t say anything without my lawyer
- I invoke my rights against self-incrimination
Requesting a lawyer is always a wise idea when you are interrogated by police, whether or not they have read your Miranda warnings. Your attorney can not only help protect you from making an admission by silence or being tricked into making a verbal confession but also help protect your well-being, ensuring you receive sufficient breaks, water, and food throughout an interrogation.
Remember that if the police refuse to get you a lawyer after you request to speak to one, or if they keep trying to question you after you invoke your right to silence, this can be grounds for any confession you make to be considered inadmissible.
Be Cautious With All Police Conversations
Always be wary of phone interviews with the police because they do not need to Mirandize you since you are not in custody and are engaging in a consensual conversation. Miranda warnings require there to be custodial interrogation, which is why police will often call you on the phone to ask you questions —they know most people do not know their statements can be held against them. Also, be cautious if the victim of a crime calls you because this can also be a way for police to get a confession as they record these conversations as evidence.
If you have any questions about admission by silence or your Fifth Amendment rights, contact experienced criminal defense attorney Peter M. Liss. You can schedule a free initial consultation by calling (760) 643-4050 or (858) 486-3024.
