What is the right to silence?
The right to silence is the right of a person suspected or accused of a crime not to be compelled to be a witness against themselves. It lets people decline to answer police questions and choose not to testify at trial. It grows out of the long-standing privilege against self-incrimination, and most legal systems recognize some version of it.
- US source
- Fifth Amendment: no person "shall be compelled in any criminal case to be a witness against himself"
- Key case
- Miranda v. Arizona, 384 U.S. 436 (1966)
- Applies to
- Custodial interrogation and testimony at trial
- Remedy
- Statements taken in violation of Miranda are generally excluded from the prosecution’s main case
The Fifth Amendment and Miranda
| Rule | What it means |
|---|---|
| Fifth Amendment | No one can be forced to testify against themselves in a criminal case. |
| Miranda warnings | Before custodial interrogation, police must say you have the right to remain silent, anything you say can be used against you, you have the right to an attorney, and one will be appointed if you cannot afford one. |
| Griffin v. California (1965) | Prosecutors may not comment on a defendant’s choice not to testify at trial. |
| Exclusion | Statements obtained without valid warnings and waiver are generally inadmissible in the prosecution’s case-in-chief. |
In the US, staying silent is not always enough to invoke the right. In Berghuis v. Thompkins (2010), the Supreme Court held that a suspect must invoke the right unambiguously; after nearly three hours of mostly silent questioning, Thompkins’s one-word answer was treated as a waiver. In Salinas v. Texas (2013), a plurality held that pre-arrest silence in voluntary questioning could be used against a person who never expressly invoked the right.
Why the right matters
Psychologist Saul Kassin (2005), reviewing wrongful-conviction cases, warned that innocent people can falsely confess under long, high-pressure interrogation, and that innocent suspects are especially likely to waive their rights because they believe they have nothing to hide. The right to silence is a safeguard against that risk. See Miranda v. Arizona for the full background, and the presumption of innocence for the related principle.
How to invoke it
- Say it clearly. "I am invoking my right to remain silent. I want a lawyer."
- Then stop talking. Once you invoke, police must stop questioning; don’t restart the conversation yourself.
- Ask for a lawyer. A clear request for counsel also halts custodial interrogation.
- Basic identification may differ. Some states require you to give your name in certain stops; ask a lawyer about local rules.
This article is general information, not legal advice; procedures differ by jurisdiction.
Frequently asked questions
- What is the right to remain silent?
- The right not to be compelled to incriminate yourself, including declining to answer police questions and choosing not to testify at trial.
- Can my silence be used against me?
- A prosecutor cannot comment on a defendant’s refusal to testify at trial, but in some situations silence before you clearly invoke the right may be used, so invoke it expressly.
- What happens if police don’t read Miranda rights?
- Statements from custodial interrogation without valid Miranda warnings and waiver are generally excluded from the prosecution’s main case.
References
- 대한민국 헌법 제12조 제2항; 형사소송법 제244조의3, 제283조의2, 제308조의2, 제309조.
- 日本国憲法 第38条第1項; 刑事訴訟法 第198条第2項, 第311条第1項.
- 中华人民共和国刑事诉讼法（2018年修正）第五十二条、第一百二十条.
- Miranda v. Arizona, 384 U.S. 436 (1966).
- Kassin, S. M. (2005). On the psychology of confessions: Does innocence put innocents at risk? American Psychologist, 60(3), 215–228.