The first line of the Miranda warning, the spiel cops are supposed to read before arresting
and interrogating a suspect, goes “You have the right to remain silent, anything you say
can and will be used against you in a court of law.”
Simple, to the point, and backed by the Fifth Amendment against self-incrimination.
And yet, according to several recent Supreme Court cases, staying quiet may not be enough.
So, do you have the right to remain silent?
Well, sort of.
Many countries recognize a fundamental right to silence.
This goes back as far as the early 1200s, based on the Latin legal principle, “no
man is bound to accuse himself”.
But in the US, even though staying silent is a good way to avoid self-incrimination,
it does not automatically grant you Fifth Amendment privileges.
In a landmark 2010 case, the US Supreme Court ruled that merely staying silent was not the
same as invoking the right to silence.
In this case, a suspect’s three hour long refusal to speak during interrogation was
not considered to be a clear invocation of that right.
Then, in 2013, a US Supreme Court case reaffirmed their decision when a suspect refused to answer
questions about shell casings from the crime scene.
Prosecutors argued that his lack of a response suggested that he was guilty, and the court
agreed, saying.
“a witness does not [affirm the right] by simply standing mute... [the suspect] was
required to assert the privilege in order to benefit from it.”
They said that unless a suspect clearly, and unambiguously invokes their right to silence,
or more specifically, the Fifth Amendment, then the protection against self-incrimination
does not apply.
This common misconception stems from the difference between the right to stay silent, and the
right to avoid self-incrimination.
So, in order to maintain your rights, you have to actually say “I am invoking my right
to stay silent”.
So, do we really have the right to stay silent?
No.
And worse yet, your silence can be used against you in court.
So when the cops pick you up, make sure you tell them, “you’re pleading the Fifth”.
If you’re interested in other weird interpretations of your fundamental rights, check out what
the government is doing about your sex life.
If you’re interested in learning more about your rights, make sure you check out this
AJ+ video about what you should do when you’re stopped by the police, or the one below on
how the government regulates your sex life.
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