Scott M. Kuboff, Esq.
Northeast Ohio Trial Attorney

Understanding Your Rights


UYR: The Right to Remain Silent

Most, if not all, people believe they have the right to remain silent under the Fifth Amendment. This is true, to a certain extent. A recent case decided by the Supreme Court of the United States, Salinas v. Texas, has certainly changed peoples understanding of their rights under the Fifth Amendment. 

Before I discuss the Salinas decision, let’s start with some historical perspective. The Fifth Amendment guarantees that no person “shall be compelled to be a witness against himself . . . .” What courts have interpreted this to mean is that no person shall be required to provide self-incriminating testimony; not necessarily an unqualified the right to remain silent. Generally, if a person wants to claim a right or be protected by a privilege, such as their Fifth Amendment privilege, they must timely assert it or it is waived. Courts have found that remaining silent is not the same as invoking your Fifth Amendment privilege. In practice, this means that police may continue to ask an individual questions unless they specifically invoke their rights under the Fifth Amendment. 

Many people are aware of Miranda v. Arizona, the case responsible for “Miranda” rights. In Miranda, the Supreme Court of the United States held that statements made during a “custodial interrogation” could not be used at trial unless the government could demonstrate “the use of procedural safeguards effective to secure the Fifth Amendment's privilege against self-incrimination.” At a minimum, the Miranda Court required that a person, “in custody” be advised “prior to interrogation” of the following: (1) the right to remain silent; (2) anything said will be used against you in court; (3) the right to consult with a lawyer and to have a lawyer present during interrogation; and (4) that, if you are indigent, a lawyer will be appointed to represent you. The rationale behind this decision was that an individual’s failure to invoke his Fifth Amendment privilege would be excused when he is in a vulnerable situation with “inherently compelling pressures” such as being in an unwarned custodial interrogation. 

Following Miranda, many people mistakenly believed they had to be advised of their Miranda rights during any police interaction. This is not true. Instead, a person only needs to be advised of their Miranda rights if, and only if: they are (1) in custody and (2) being interrogated. 

This brings up the interesting question of “when is someone in custody?” It’s difficult to provide a straightforward and consistent answer because it depends on the facts and circumstances. Generally, if a person is not free to leave or otherwise terminate the questioning, they’re in custody. It is important to understand that not all police questioning amounts to “custodial interrogation.” If the police show up at an individual’s house to speak with them, chances are that is a non-custodial questioning; meaning Mirandashould not apply. If someone voluntarily goes to the precinct to speak with detectives, that is also non-custodial and Miranda should not apply. However, if a person is arrested and is being questioned about the offense, Miranda should apply. In such a situation, once the Fifth Amendment rights are invoked, all questioning must cease and a subject’s silence could not be used against them at trial. 

This brings us to Salinas. Just this week, the Supreme Court of the United States held that an individual’s silence during a non-custodial questioning may be used against him at trial. The Court reasoned that since it was a voluntary meeting with the police the pressure and vulnerability of being “in custody” was not present. Further, since a privilege must be affirmatively asserted or it’s waived, his silence did not operate to invoke his Fifth Amendment privilege. Instead, the Court found that, under the circumstances, the prosecution could use his silence in response to an incriminating question as evidence of guilt at his trial.

While I disagree with the precedent the Salinas decision sets, it is clear that individuals must now affirmatively invoke their Fifth Amendment privileges so that their silence cannot be used against them at trial. The “right to remain silent” is only useful if it is invoked. Should you, a client, or someone you know, be in a situation where you are speaking to law enforcement and do not want to answer a question in fear of potential consequences, it is absolutely necessary to state something to the effect of “I am not answering this question under the protection of the Fifth Amendment.” After invoking your rights, immediately terminate the questioning, or at the very least, demand the presence of an attorney before any further questions are asked. The Justices in the Salinas case suggested that such a response would have been all that was required to invoke the defendant’s Fifth Amendment privilege and his silence would not have been used against him to obtain a conviction.