If You Don’t Invoke Your Right to Silence, Can It Be Used Against You?
Yes, if a suspect does not explicitly invoke their right to remain silent, their silence may be used against them in court. This principle was established by two landmark U.S. Supreme Court cases—Salinas v. Texas and Berghuis v. Thompkins—which clarified the requirements for invoking the Fifth Amendment right to silence. Together, these cases emphasize that merely staying silent is not enough; suspects must make an unambiguous statement to claim their right, otherwise their silence can sometimes be interpreted as evidence against them.
Key Cases and Legal Standards for Invoking the Right to Silence
The right to silence is protected under the Fifth Amendment to the U.S. Constitution, which guards against self-incrimination. However, the Supreme Court has ruled that suspects must actively invoke this right for it to apply. Otherwise, in certain situations, a suspect’s silence or statements made after a period of silence can be admissible in court.
Salinas v. Texas, 570 U.S. __, 133 S.Ct. 2174 (2013)
Background: In Salinas v. Texas, Genovevo Salinas voluntarily went to the police station for questioning regarding a murder. During the interview, he answered some questions but remained silent when asked if shotgun shells found at the crime scene would match his shotgun. Salinas had not been arrested nor was he given Miranda warnings since he was not in custody. His silence on the specific question about the shotgun was later used in court as evidence of his guilt.
Supreme Court Decision: The Supreme Court held that because Salinas was not in custody, had not been Mirandized, and had not clearly invoked his Fifth Amendment right, his silence could be used against him. The Court ruled that to invoke the right to silence in a non-custodial setting, a suspect must affirmatively state they are exercising their Fifth Amendment right. Since Salinas did not do so, his selective silence was admissible as evidence.
Key Takeaway from Salinas:
In a voluntary, non-custodial setting, silence can be used as evidence against the individual if they have not explicitly invoked their Fifth Amendment right to remain silent.
The suspect must clearly state that they are exercising their right to remain silent to prevent their silence from being used as evidence of guilt.
Berghuis v. Thompkins, 560 U.S. 370 (2010)
Background: In Berghuis v. Thompkins, Van Chester Thompkins was arrested for murder and advised of his Miranda rights. However, he remained largely silent during a three-hour interrogation before finally responding to a question about his religious beliefs in a way that implicated him in the crime. Thompkins argued that his silence during the majority of the interrogation constituted an invocation of his right to remain silent, and that his eventual statement should not have been used against him.
Supreme Court Decision: The Court ruled that simply remaining silent for an extended period does not equate to invoking the right to remain silent. For a suspect’s silence to be protected under the Fifth Amendment, the suspect must unambiguously assert their right to silence. Thompkins’ brief response after a prolonged period of silence did not amount to an invocation of his right to silence and could be used against him.
Key Takeaway from Berghuis:
Silence alone is insufficient to invoke the Fifth Amendment right; the suspect must clearly and affirmatively express their wish to remain silent.
A suspect’s response, even after prolonged silence, can be used as evidence unless they clearly invoked their right.
What Does This Mean in Practice?
The Salinas and Berghuis decisions emphasize that for the right to silence to apply, suspects must explicitly and unambiguously state their desire to exercise it. If a suspect does not do so, their silence or eventual statements can be admissible. Here’s how this works in practical scenarios:
During Non-Custodial Questioning (Salinas): If a suspect is questioned voluntarily and is not in custody, they must clearly invoke their right by saying something like, “I am exercising my right to remain silent.” Without this statement, selective silence can be interpreted as a sign of guilt and may be used in court.
During Custodial Interrogation (Berghuis): In a custodial setting where Miranda rights have been read, suspects must still clearly state their intention to remain silent to prevent further questioning. A statement such as, “I do not want to answer any questions without a lawyer,” or “I am invoking my right to remain silent,” is required. Silence alone, even if prolonged, does not equate to an invocation.
Waiving Silence After Invoking It: Even if a suspect initially invokes the right to silence, they can waive it if they later initiate communication or respond to police questioning voluntarily. Police may resume questioning if the suspect reopens the conversation or if the suspect’s actions imply a waiver of the right.
Implications for Suspects
These cases make it clear that invoking the right to silence is not automatic. To protect against self-incrimination, suspects should take specific steps:
Use Clear Language: Clearly state, “I am exercising my right to remain silent,” or “I do not wish to speak without an attorney.”
Do Not Assume Silence Equals Protection: Simply staying quiet is not enough. If you do not verbally assert your right, police may continue questioning, and any responses you give can be used as evidence.
Avoid Voluntary Statements: Even if remaining silent, avoid gestures or comments that may imply willingness to answer questions.
Limitations and Exceptions
Public Safety Exception: In certain emergency situations, the police may be permitted to ask questions without advising of Miranda rights if immediate questioning is necessary to protect public safety.
Non-Custodial Interactions: The protections of Miranda and the Fifth Amendment typically apply only in custodial settings. Outside of custody, statements made without an explicit invocation of the right to remain silent can be admissible.
Conclusion
In summary, if a suspect does not clearly invoke their right to remain silent, their silence—or later statements—may be used against them in criminal proceedings. Both Salinas v. Texas and Berghuis v. Thompkins underscore the importance of explicitly stating one’s right to remain silent to trigger Fifth Amendment protections. These cases establish that suspects must take affirmative steps to protect their rights; otherwise, remaining silent alone may not shield them from self-incrimination.