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If you ever find yourself interacting with police, knowing your ‘right to remain silent’ is crucial. Whether you’re innocent or guilty, what you say can be used against you. Your right to remain silent under the Fifth Amendment applies at all stages of a criminal investigation or prosecution, protecting you from self-incrimination. This right is activated specifically during custodial interrogations, and you can invoke it alongside your Sixth Amendment right to legal counsel to ensure your statements are not used against you in court. This article lays out when it’s wise to stay silent, the clear steps to assert this right, and what to expect after you’ve made that choice. Understanding your rights ensures you’re protected during these pivotal moments.

Key Takeaways

  • Miranda v. Arizona established the constitutional right to remain silent, leading to the creation of standardized Miranda warnings that law enforcement must provide during arrests to protect the rights of the accused.
  • The Fifth Amendment safeguards individuals from self-incrimination, guaranteeing that they may refuse to answer questions that could incriminate them in a criminal case, and invoking this right requires clear and explicit communication.
  • Invoking the right to remain silent or the right to an attorney has significant legal implications, requiring police to immediately cease questioning and ensuring that any statements made subsequently without legal counsel are inadmissible in court.

Where do the Standard Warnings Come From?

The rights guaranteed to everyone in the Miranda Warning come from two parts of the Constitution.  

The Amendment that gives you the right to remain silent and not incriminate yourself during all stages of a criminal investigation or prosecution is the Fifth Amendment.  

The Amendment that gives you the right to the assistance of counsel at all stages of a criminal investigation or prosecution is the Sixth Amendment. You can invoke this right to counsel by saying, “I want to speak to an attorney. I am not answering any other questions until after I speak to an attorney.”  

Your 5th amendment right to remain silent and your 6th amendment right to counsel are both explained in the Miranda rights warning, which is read to you by officers before a custodial interrogation.  

What Does the Fifth Amendment Say?

The Fifth Amendment of the United States Constitution provides that:  

No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.  

What do you Miranda Rights Mean in Simple Terms?

The simplest way to understand the right to remain silent can be found in the oft used phrase regarding the Supreme Court’s interpretation of this topic and enshrined in the Miranda warning.  

The right to remain silent comes from the 5th Amendment to the United States Constitution, protecting citizens from incriminating themselves. This means that you cannot be forced to testify against yourself. The 5th Amendment’s right to remain silent is an important right that every citizen has but is not asserted as often as it should be by criminal defendants. For a statement made to the police during a custodial interrogation to be used against you in court, the state has to prove that you made a knowing, intelligent, and voluntary waiver of your 5th Amendment right to remain silent.  

It is essential to know when your 5th Amendment right to remain silent kicks in. Many people mistakenly believe that you can assert your 5th Amendment rights when you are arrested. But that may not always be the case. The 5th Amendment’s right against self-incrimination applies to situations where the defendant is in custody and is being questioned by the police. If you waive your 5th Amendment right to remain silent and voluntarily speak to the police, anything you tell them can be used against you in court to prosecute you for the crimes that you are being charged with.  

There are two essential elements to the 5th Amendment that must apply for the 5th Amendment to be in effect. The first element is that the defendant was in custody. For the 5th Amendment to apply, you had to have been in custody. Whether you were in custody or not depends on the specific facts of your case and rules unique to your state. When in a room with a police officer, it may not be evident to a Defendant if they are free to leave. Generally, for purposes of the 5th Amendment, you will be considered to have been in custody if you were not free to leave. It may be wise to ask the police officer if you are free to go.  

The 2nd element is that the defendant was actually in an interrogation. In addition to being in custody, the defendant has to have been interrogated instead of merely being asked questions. What Courts consider to be an interrogation and where it begins and ends will be unique to each state’s case law.    


Putting all of this together, for the state to use a statement you made in court as evidence, the state has to prove that you were adequately informed of your rights. In a typical 5th Amendment case, the state must show:  

  • That the police officer informed the defendant that they had the right to remain silent and that anything they said can and will be used against them in court.  
  • They must also show that the officer told the defendant that they have a right to a lawyer and that if they cannot afford a lawyer, the court will appoint one for them.  

The State does not need your signature on a document waving those rights, for proof; that, however, is the best evidence that they explained your rights to you, and you waived them. It is preferable for the police to have you waive your rights in writing. They will often have paperwork and ask you to sign it. If you were in custody and were being interrogated and you were not informed of these rights, the court may bar the state from introducing any of your statements in court during the trial of your case.  

There Are Two Crucial Supreme Court Cases That You Should Know

What has commonly been called the Miranda warnings came into being because of the 1966 decision in the Supreme Court case of Miranda v. Arizona. We will summarize what happened and explore it in more depth. Simply Miranda v. Arizona was a U.S. Supreme Court Case that examined a case in which the defendant was charged because he confessed without first being informed of his Sixth Amendment right to an attorney and of his right, according to the Fifth Amendment, to refuse “to be a witness against himself.”  


A detailed description of the background and highlights of Miranda v. Arizona is that in 1963, Ernesto Miranda was arrested by Phoenix police based on a tip that linked him to the kidnapping and rape of an 18-year-old woman. After hours of interrogation, Miranda signed a confession that certified that his statement was made voluntarily and was made with no threats or coercion and with full knowledge of his legal rights.  


During the investigation after the arrest, the law enforcement officers failed to inform Miranda of his right to counsel, and he was neither advised of his right to remain silent nor that statements made during his questioning could be used against him in court. During the trial, Miranda’s court-appointed defense attorney objected to the admissibility of the confession and was overruled by the trial court on it. His confession came in, and the jury ultimately convicted Miranda.  


The trial court’s decision was affirmed by the Arizona Supreme Court upon appeal in 1965. Miranda’s case was further appealed to the U.S. Supreme Court. There the Supreme Court ruled in favor of Miranda, citing in part the Fifth Amendment’s protections against self-incrimination and the Sixth Amendment’s establishment of the right to an attorney unless a criminal suspect had been made aware of and waived those rights.  

In the Supreme Court’s ruling, Chief Justice Earl Warren wrote:

“The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him.”  

Those specific rules of Miranda rights were refined and explored later in a different case, Salinas v. Texas, and ultimately tweaked to some extent. In Salinas v. Texas, the Supreme Court ruled that a person’s silence can, in fact, be held against them pre-Miranda rights. That means before a police officer reads off your Miranda rights, your silence can be used against you. The facts of the case highlight what precisely this means.  

Salinas was suspected of a murder that was committed in 1992. He was brought in for informal questioning by the police. During this line of questioning, he was not rights advised of him. He had answered the police officer’s questions up to that point. Salinas fell silent; however, when asked, the police officer asked him why the bullet shells of his shotgun would match the shells found at the crime scene. Later, that silence on the question was used in court at his trial before a jury to suggest he was guilty of committing the murder. Because of his failure to inform questioners of his choice to remain silent and without having his Miranda rights read to him, his silence was used as substantial evidence to believe that he was responsible for the murder in his case.  

When and How to Invoke your Right to Silence

The right to silence lets us ensure that we do not incriminate ourselves. Anything you say can and will be used against you in court as evidence if it can be. Because of this fact, it is vital that you invoke your right to silence early. Whether or not you are guilty, any potentially damaging evidence or even inconsistencies in your story or testimony could be used as evidence of your perceived guilt.  

When To Keep Quiet?

To avoid having your silence used as evidence in court, two things need to be present:  

  • A police officer must have read you your Miranda rights  
  • You must clearly state that you are invoking your right to remain silent  

If you are being questioned for any reason and you wish not to answer, it is essential to express your desire to remain silent by stating something like I wish to invoke my right to remain silent, or I want to consult with a lawyer. You can invoke this right at any time, whether or not you are formally in custody or charged. In fact, the minute that the police start questioning you, that moment is the ideal time to invoke your right to remain silent.  

What to Say?

How to Invoke Your Right to Remain Silent:

“I am invoking my right to remain silent and my right to an attorney, and I won’t be answering any more questions without a lawyer.” Then remain silent. If you are lawfully detained, you can tell the officer your name, address, and date of birth without waiving your rights.  


What if you Feel Like You Can Resolve the Matter with the Police Without Legal Help?

If you decide to speak to law enforcement about the facts of your case without an attorney being present, then you are waiving the necessary rights. Those rights include your Fifth Amendment rights against self-incrimination and your Sixth Amendment right to counsel.  

Even if you want to clear your name in whatever line of questioning, the police start with you. It is always best to consult with an attorney. If you choose to proceed alone, tread very carefully as what you say could be used to build a case against you. It is better to wait until you have professional legal help to convey the information that you believe will help clear you.  

Suppose you choose to proceed on your own in a line of questioning from the police. It would be best if you were mindful of the fact to invoke your right to remain silent. You have to say, “I am invoking my right to remain silent and won’t be answering any more questions without a lawyer.” At this point, the officers should leave you alone.  

Even if they do not leave you alone and start to badger you further, you should sit quietly and wait to speak to the attorney who will be representing you. While law enforcement may try to provoke you into saying something you will regret, strongly resist the temptation. All of their actions are with purpose and calculated to get a reaction out of you. Do not let them get the best of you. You will only be doing what they want and potentially hurting yourself.  

Won’t Invoking my Right Make Me Look Guilty?

People have the conception that invoking their right to remain silent will make them look guilty.” While arguably there is a risk of that, in a pure risk/benefit analysis invoking the right still makes sense. In the context of the case, the police are investigating it may, but if your criminal case ever goes to trial, the jury will never be told that you invoked your rights. In other words, the fact that you remained silent cannot be used against you at trial.  

When & How to Invoke Your Right to an Attorney?

At any point that you are being questioned as a suspect, you can assert your right to a defense attorney present. A criminal defense lawyer will have had years of experience dealing with the police and will be versed in what your rights are. A criminal defense attorney will also know the ramifications of what the police officers are asking and its possible ramifications for you. It is also in your best interest to have a criminal defense attorney with you so they can quickly find out what the police want from you and advise you on which questions to answer and how or if to answer anything at all.  

This means that you should ask for an attorney at the first possible opportunity. If you have been read your Miranda rights, you are a serious suspect in the police officer’s investigation. Law enforcement has some evidence against you and has likely been building a case against you. Please do not give them any more communication against you by giving them statements, and understand that you need a lawyer to ensure that your rights are respected.  

By invoking this right, you can start to defend yourself and ensure that the police are not given any more evidence to build a case against you. Even if you have not been read your rights but are being questioned, you have the right to counsel. The minute you start to feel leery or nervous about an interaction with the police, it is best to invoke your right to silence and get an attorney. After that, wait for your attorney’s advice on your particular circumstance and act accordingly.  

What to Say?

In order to invoke this right, you can say the same thing that you would say to invoke your right to silence: “I am invoking my right to remain silent and my right to an attorney, and I won’t be answering any more questions without a lawyer.” Once you have made this clear, you should be given an opportunity to contact your lawyer. Make sure that you say this clearly to an officer, but once it has been stated, you cannot be prevented from talking to a criminal lawyer without considerable damage happening to the criminal case for the state.  

It can feel intimidating to invoke these rights for many people because they feel like they are making themselves look guilty. In reality, the opposite is true. When you clearly invoke these rights, they cannot be used against you in court, and it protects you.  

The best advice to any criminal defendant or suspect in a crime being investigated by the police is to exercise their right to remain silent whenever they are questioned by the police for any reason. You are under no obligation to talk to the police when you are under investigation and being questioned by them. It is also somewhat irrelevant if you hurt their feelings or make them more suspicious of you. In fact, one of your rights as a U.S. citizen is to not cooperate with the police when they are investigating you for a crime. In most criminal cases, the biggest mistake that criminal defendants make is talking to the police.  

Most Common Misunderstandings of Miranda Warnings

It is common for clients to ask if they can get their case dismissed because the police did not tell them that they have the right to remain silent when they are arrested. It is also common for a criminal defendant to declare at their initial appearance proudly and boldly on a criminal charge to the Judge that if I was not read my rights, my case could be dismissed. It, unfortunately, is not quite that simple, nor do the protections and rights guaranteed by the 5th Amendment allow an automatic dismissal of valid criminal charges.  

Invoking the Right as an Admission of Guilt

One common misconception is that invoking the right to remain silent is an admission of guilt. This is a misconception, as invoking the Fifth Amendment right to silence offers protection and cannot be considered as evidence of guilt in a court of law.

The Effect on Public Perception and Jury Bias

Another misconception lies in the effect of public perception and jury bias. Implicit biases, which can be associated with race, may affect jurors’ perceptions, leading them to interpret the invocation of the right to remain silent as an indication of guilt. These biases have the potential to influence public opinion outside the courtroom and can subsequently affect the deliberation process and opinions within a jury.

This article did, however, provide an overview of the right to remain silent and counsel as they are somewhat interwoven. A criminal conviction can have a long and profound impact on your life. If you are investigated or questioned by the police, hopefully, this article has helped you to understand more the nuisance of how your rights to remain silent and to counsel apply. If nothing else, your best course of action is to invoke your rights and contact one of our experienced lawyers at (630) 324-6666 to help you through the situation.    

Frequently Asked Questions

What is the 5th Amendment in simple terms?

The 5th Amendment protects criminal defendants from self-incrimination, allowing them to refuse to testify if their testimony may incriminate themselves. This is commonly known as "pleading the Fifth."

What are the Miranda rights?

The Miranda rights are the rights guaranteed to individuals in the United States by the Fifth and Sixth Amendments of the Constitution, including the right to remain silent and the right to have an attorney present during questioning.

When does the right to remain silent apply?

The right to remain silent applies during a custodial interrogation, when a person is in custody and being questioned by the police.

What happens if you waive your right to remain silent?

If you waive your right to remain silent and speak to the police, anything you say can be used against you in court. Be mindful of this when deciding whether to speak to law enforcement.

When should you invoke your right to silence?

It is best to invoke your right to silence as soon as the police start questioning you. This can help protect your legal rights and prevent any self-incrimination.

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.

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