Right to Remain Silent: Most Powerful and Least Used Right


“A Detective has called and wants me to come in and talk with him about an ongoing investigation into a potential criminal matter, what should I do?”  If you practice Criminal Defense for any amount of time, you will inevitably get a question like this.  I have already had 4 clients in 2013 call with this exact dilemma.

So many of us have been conditioned since a young age to cooperate with authority, to be honest, and to help the police, that the mere thought of not talking with a police investigator or Detective makes us feel as if we are doing something wrong.  Others feel that if they give a sufficient explanation that they can talk their way out of any criminal charges.  Others are arrogant enough to believe that any wrongdoing by them was properly hidden, covered up or distanced from themselves and that the police will never be able to make a case against them.

Whatever the instinct, I always counsel that if one is to attend such a meeting, one should never attend a meeting with an officer or Detective investigating a crime without having consulted an attorney first and without an attorney present during the questioning. In most cases, I go even beyond that and advise that the person not speak with the police at all.

The reason is simple:  In all my years of practicing, and of the over 100-plus instances of clients being invited to speak with Detectives/police, I can honestly count on 2 fingers the number of times when this type of interview helped the client avoid prosecution, or helped him in his Defense.  The reality is that these types of meetings are designed for 2 things: the confession of the suspect, or the revealing of information and testimony of the suspect that will be later used against him.  Either way, the meeting is designed to take in evidence to be used against the accused later.  I also can’t even tell you how many cases were dead in the water before I could even begin my defense preparation due to an accused giving a confession to the crime during this interview with law enforcement.

Most of the time, the only reason the police are inviting you in to talk is for the sole purpose of obtaining your confession.  When a suspect voluntarily attends a meeting with police, he has a right to terminate the interview at any time on his own and freely leave the interview.  The right to have counsel present hasn’t attached since they went voluntarily on their own. Furthermore, their obligation to give you a Miranda warning advising you of your rights also has not attached since you are in their office of your own free will.

The Supreme Court issued its ruling in Salinas v. Texas on June 17, 2013, a case involving the 5th amendment right to not “be a witness against himself.”[i]  The ruling held that a suspect who is not in custody is not entitled to have his Miranda warnings read to him and that his answers, including his failure to answer and subsequent silence in response to a question, can be used against him in court proceedings.  The Court’s decision is of interest to Criminal Defense Law practitioners not due to any groundbreaking expansion or limitation of the well known 5th amendment right to not incriminate one’s self, but perhaps due to the distinction between a suspect who verbally invokes his right to remain silent, and a suspect who fails to verbally invoke the right.

Even many legal practitioners inaccurately believe the right to remain silent is so inviolate, that any questions asked in a question and answer setting with police are not admissible unless one had been previously read his Miranda warnings.  Moreover, much of the general public hold an even greater misunderstanding of their rights and wrongly believe that an entire arrest is illegal if at no point during the arrest they are not read their rights (not understanding that the need to read you your rights is only necessary if they are seeking to obtain information from you post custody or post arrest.)  If even licensed members of the bar don’t completely understand the 5th amendment and its protections, you can imagine how the average citizen may potentially incorrectly assume he is being protected during a conversation with police before having been read his Miranda warnings.  Because the defendant in Salinas went to talk to the police voluntarily, his statement was not custodial, thus no Miranda warnings were required.

It has long been settled that the privilege “generally is not self-executing” and that a witness who desires its protection “must claim it.”[ii]  The Court has held there are two exceptions to the requirement that witnesses invoke the privilege. The first exception is that a criminal defendant need not take the stand and assert the privilege at his own trial.[iii] That exception reflects the fact that a criminal defendant has an “absolute right not to testify.[iv]  The second exception is that a witness’ failure to invoke the privilege must be excused where governmental coercion makes his forfeiture of the privilege involuntary. A suspect who is subjected to the “inherently compelling pressures” of an unwarned custodial interrogation need not invoke the privilege.[v] Due to the uniquely coercive nature of custodial interrogation, a suspect in custody cannot be said to have voluntarily forgone the privilege “unless [he] fails to claim [it] after being suitably warned.”[vi]  The noticeable word that must be taken into account is the word “custodial interrogation.”  If you aren’t in custody, you are going to a sword fight with toothpick.  Unless you are wise enough to know you can refuse to answer any question and leave at any time.  But if that is your position since the beginning, why would anyone go to the interview to begin with?

Popular misconceptions notwithstanding, the Fifth Amendment guarantees that no one may be “compelled in any criminal case to be a witness against himself”; it does not establish an unqualified “right to remain silent.” A witness’ constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim.[vii] A suspect who stands mute has not done enough to put police on notice that he is relying on his Fifth Amendment privilege.  So even if you are smart enough to refuse to answer a potentially delicate or outright implicating question, you will still come across as hiding something!

Your school age child (should he choose a life of crime) may have a little more protection. The latest Supreme Court case to apply Miranda to juveniles is J.D.B. v. North Carolina, 131 S.Ct. 2394 (2011).  In this decision he Court looked directly at the question of factors that may be present which might lead a juvenile to believe that he was in custody, thereby requiring law enforcement to give the Miranda warnings.  In that case the juvenile was questioned by 2 police officers and 2 school administrators in a room with the door closed, without being told he was free to leave, without being allowed to talk to his Grandmother, and threatened.  The Court held for Juveniles, other relevant factors such as their age, a controlled setting, etc. could be used to determine if child’s decision to go meet with authorities really was “voluntarily”.However, adults will not have the luxury of being given the same wide latitude that a juvenile enjoys in determining the voluntariness of his attendance in a police interview.

In his concurring opinion in the Salinas decision, Justice Scalia quoting precedent says, “A defendant is not ‘compelled…to be a witness against himself’ simply because a jury has been told that it may draw an adverse inference from his silence.”[viii]  Scalia’s observation drives home the most compelling reason not to attend any such interview with the police: Anything you say, and anything you don’t say and any silence to any questions, can and will be used against you in court.  Attending such an interview will inevitably allow a jury to make inferences based on your silence as well as the tone in your voice, your posture, your clarity, your reactions, your delay in answering a question, etc.  If you don’t attend the interview you are disarming the prosecution of this potential evidence.  You also avoid locking your defense attorney into a defensive strategy for your case.  Once an accused offers up his explanation, justification, information about why he is not guilty of a crime at his interview, the cat is out of the bag as far as the theory of defense goes.

The best advice you will ever get when faced with a potential criminal charge is to immediately talk to an attorney.  But the better advice is to not talk to anyone until you have talked to an attorney.  Talking to an attorney on a Tuesday, the day after you went to an interview with police on a Monday, could very well be the difference between Guilty and Not Guilty.

[i] Salinas v. Texas, 2013 U.S. LEXIS 4697 (U.S. June 17, 2013)

[ii] Minnesota v. Murphy, 465 U. S. 420, 425, 427, 104 S. Ct. 1136, 79 L. Ed. 2d 409 (1984).

[iii] Griffin v. California, 380 U. S. 609, 613-615, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965).

[iv] Turner v. United States, 396 U. S. 398, 433, 90 S. Ct. 642, 24 L. Ed. 2d 610 (1970).

[v] Miranda v. Arizona, 384 U. S. 436, at 467-468, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

[vi] Murphysupra, at 429-430, 104 S. Ct. 1136, 79 L. Ed. 2d 409.

[vii] Hoffman v. United States, 341 U. S. 479, 486, 71 S. Ct. 814, 95 L. Ed. 1118 (1951)

[viii] Mitchell v. United States, 526 U. S. 314, 331, 119 S. Ct. 1307, 143 L. Ed. 2d 424 (1999) (dissenting opinion).

Share To: