Your Right to Remain Silent

You have the right to remain silent. Everything you say can and will be used against you in a court of law.

You hear these words all the time. When you see a TV cop muttering those words, usually it means the good guys caught the bad guys. You might not give much thought to the words themselves. But you should. James Madison came up with those words, and they have been a part of our Constitution for nearly as long as our country has been around. Pay attention to the words. Maybe try saying them like this to internalize their true meaning:

You have the RIGHT TO REMAIN SILENT.

EVERYTHING you say

CAN and WILL be used

AGAINST YOU in a court of law.

Take those words at their face, and take them to heart. But let’s dive a little deeper into what they mean.

The United States Constitution, which created the system of government we have in place today, took effect in 1789. In 1791, the first ten Amendments – the Bill of Rights – became part of the Constitution. The Amendments in the Bill of Rights were designed to protect the People from government overreach. Amendments 1-3 were meant to safeguard liberty; 4-8 to safeguard justice; and 9-10 to remind us that there may be more rights than just those the Constitution specifically mentioned. The right to remain silent is one of many guarantees in the Fifth Amendment, all designed to prevent the government from randomly curtailing citizens’ liberty and property:

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 offence 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.

In 1966, in the case of Miranda v. Arizona, the Supreme Court clarified that the Fifth Amendment meant that a person in custody must be told that they have the right to remain silent, as well as the right to a lawyer; the familiar warnings – Miranda warnings – came out of that case. The right to remain silent is a powerful right – juries in California are told that they cannot hold an Accused person’s silence against that person if they choose not to testify. But since Miranda was mandated, the Supreme Court has carved more and more exceptions into the right to remain silent. The police can just keep asking questions if you don’t clearly invoke the right – they don’t even have to ask you if you want to talk (Berghuis v. Thompkins – 2010). “Spontaneous” statements may still be used against you (Rhode Island v. Innis – 1980). A statement obtained in violation of your right to remain silent may still be used against you later to attack your credibility (Harris v. New York – 1971). And in some contexts – like when you’re on the side of the road doing DUI sobriety tests (which you also don’t have to do, by the way) – no warnings are required.

All this is to say – if you want to exercise your right to remain silent, you’d better have your wits about you and remember you have it. And you have to be sure to exercise it – because if you are under investigation, EVERYTHING you say CAN and WILL be used AGAINST YOU in a court of law.

Everybody has a reflex to talk – it’s human nature. But nobody has an obligation to explain anything to anybody. You may want to talk to those near and dear to you, but why to a stranger just because they have a uniform on? There are a lot of situations in life where you might be better not saying anything; there are a lot of other situations where talking doesn’t really add anything. One such situation is where you are under investigation – the Constitution itself reminds you that if you do talk, EVERYTHING you say CAN and WILL be used AGAINST YOU in a court of law.

You have a right to remain silent, but it’s on you to remember that right and it’s on you to exercise that right. And if you are in a position where you have to exercise the right to remain silent, it’s probably a good idea to exercise another fundamental constitutional right, one that appears in both the Fifth and Sixth Amendments – the right to counsel – and give a call to someone like me.