The Constitutional Right to Silence

The Right to Remain Silent

The “right to remain silent” is well-known to anyone who watches movies or TV shows about police, but the constitutional rights that the statement represents are not always very well understood. The Fifth Amendment to the U.S. Constitution protects people from being compelled to give testimony that could incriminate them. This is not the same as saying that a person has a right to silence at all times. In some situations, police may use silence itself as incriminating evidence. The Supreme Court has held that police must stop questioning suspects once they assert their right to counsel, but it has also held that a person must affirmatively invoke the right to silence.

Silence at Trial

The Fifth Amendment states that “[n]o person...shall be compelled in any criminal case to be a witness against himself.” The right to silence is among the Miranda rights that police must recite during or shortly after an arrest. The primary application of this right occurs during criminal court proceedings, where prosecutors are not allowed to call the defendant as a witness. The defendant has sole discretion over whether to testify at trial, and prosecutors may not comment if the defendant decides not to do so. Griffin v. California, 380 U.S. 609 (1965); Harris v. New York, 401 U.S. 222 (1971).


An exception to the right against self-incrimination in court applies if prosecutors have granted the person immunity from prosecution. The Supreme Court has held that the immunity provisions of federal law offer the same protections as the Fifth Amendment. Kastigar v. United States, 406 U.S. 441, 462 (1972).

Silence During Police Interviews or Interrogations

The question of whether a person has a right to silence, essentially meaning a right to refuse to speak to police or answer their questions, has no simple answer. As a very general rule, no one is obligated to speak to the police, but even non-verbal communication can, in some situations, be incriminating.

The Supreme Court’s decision in Miranda v. Arizona, 384 U.S. 436 (1966), which gave us the well-known Miranda warnings, requires police to cease any and all interrogation once a person has invoked the right to an attorney, and it holds that any statements made afterwards are inadmissible in court. This only applies, however, after police have advised the person of their Miranda rights, which they are only obligated to do once they have placed that person under arrest.

Failure to Invoke the Right to Silence

Two recent court cases illustrate situations when a person’s silence could be used against him or her, without violating the Fifth Amendment or Miranda. Both involve failure by the defendant to assert the right to silence.

The Supreme Court’s decision in Salinas v. Texas, 570 U.S. __ (2013), dealt with a situation in which the defendant spoke to the police voluntarily during a murder investigation, meaning that he was not under arrest when the purportedly incriminating event occurred. When the police officer asked the defendant about his possible involvement in the murder, the officer testified, the defendant became very quiet, and his entire demeanor changed. Police offered the defendant’s silence and behavioral change as incriminating evidence. The court held that police did not violate the defendant’s rights against self-incrimination, in part because the defendant did not expressly invoke his Fifth Amendment rights.

The California Supreme Court reached a similar conclusion in a recent decision, People v. Tom, No. S202107 (Cal., Aug. 14, 2014), which involved evidence of literal silence after an alleged drunk-driving accident—specifically, that the defendant “expressed no concern about the well-being of the other people involved in the collision.” Since this lack of concern occurred after the defendant’s arrest but before he received Miranda warnings, and because he did not expressly assert his right to silence, the court held that his rights were not violated.