Also known as: right to silence · right to remain silent
Written by attorneys — see sources below.
A constitutional protection under the Fifth Amendment that permits a suspect in custody to refuse to answer law enforcement questions. The protection requires officers to deliver specific warnings before custodial interrogation and to obtain a knowing voluntary waiver before any statement becomes admissible. Silence alone after warnings does not invoke the right and answering even one question can establish an implied waiver.
Rita Russell received Miranda warnings at the station. She remained silent for several minutes then answered one question about her whereabouts on the night in question. The court held that her response constituted a valid implied waiver so the statement was admissible.
Rhea Reynolds told officers she did not want to talk and questioning stopped at once. Two hours later a different investigator gave fresh warnings and asked only about a separate billing scheme. The later confession was admissible because the original invocation had been scrupulously honored.
Rowan Russell was escorted into a locked trailer and told he could not leave. Detectives questioned him for an hour about cash skimming without any warnings and he signed a confession. The statement was suppressed because custodial interrogation occurred without the required advisements.
Renata Russo underwent a court-ordered psychiatric evaluation after her arrest. The examiner elicited statements used at sentencing to prove an aggravating factor. The evidence was excluded because no warnings about silence or counsel had been given before the examination.
Rosalind Reed faced a state proceeding that required her to testify or face contempt. She asserted the privilege and refused to answer questions that could incriminate her. The compulsion was held invalid because the Fifth Amendment protects against state-forced self-incrimination.
In November 1959, Harold Malloy was arrested during a gambling raid in Hartford, Connecticut, on charges related to pool selling. He pleaded guilty to the misdemeanor, receiving a sentence of one year in jail and a five-hundred-dollar fine, with the jail term suspended after ninety days followed by two years of probation. Approximately sixteen months later, Malloy was subpoenaed to appear before a referee appointed by the Superior Court of Hartford County to investigate alleged gambling and other criminal activities in the county. During the inquiry, he was questioned about the circumstances of his 1959 arrest and conviction, including the identity of his employer, who paid his fine and bondsman, the tenant of the apartment where he was arrested, and whether he knew a man named John Bergoti. Malloy refused to answer any of these questions, asserting that his responses might tend to incriminate him. The Superior Court adjudged Malloy in contempt and ordered him committed to prison until he answered the questions. The Connecticut Supreme Court of Errors affirmed the contempt adjudication, holding that the Fifth Amendment privilege was unavailable in state proceedings and that Malloy had not properly invoked the state constitutional privilege. Malloy then sought federal habeas corpus relief in the United States District Court for the District of Connecticut, which was denied, and the Court of Appeals for the Second Circuit affirmed the dismissal. The Supreme Court granted certiorari to consider the constitutional questions presented.
View caseRyan Roberts made an unwarned statement during a custodial interview. Officers used that statement to locate physical evidence hidden at a remote site. The evidence was suppressed as fruit of the Fifth Amendment violation.
No. Silence alone does not invoke the right. The suspect must clearly and unambiguously assert the desire to remain silent.
Police may resume if they immediately cease questioning, wait a significant period, give fresh warnings, and limit the new interview to a different crime.
Officers must deliver the specific Miranda warnings and obtain a knowing voluntary and intelligent waiver.
Yes. The prosecution may not comment on the defendant's decision not to testify or invite the jury to draw an adverse inference from that silence.
…interrogated him in a police station for the purpose of obtaining a confession. The police did not effectively advise him of his right to remain silent or of his right to consult with his attorney. Rather, they confronted him with an alleged accomplice who accused him of having perpetrated a murder. When the defendant denied the accusation…