Also known as: rights to silence · right to remain silent · Miranda right
Written by attorneys · grounded in primary & secondary sources — see below
A constitutional protection under the Fifth Amendment that permits a person to refuse to answer questions from law enforcement during custodial interrogation or to decline testifying at trial. The protection requires warnings before any statement obtained during custodial interrogation becomes admissible and bars adverse comment on the exercise of the right at trial.
Renata Russo receives Miranda warnings after arrest for fraud. She sits silently for twenty minutes while agents ask about kickbacks. When an agent asks whether she paid any doctors, she answers yes and provides details. Her response constitutes an implied waiver, so the statements are admissible at trial.
Renee Rogers is in custody on embezzlement charges and clearly states she wants a lawyer. Officers stop questioning immediately. The next day a detective reinitiates contact without counsel present and obtains a confession. The confession must be suppressed because the invocation remained in force.
Select any source to read its text and confirm it supports the definition.
Rita Russell requests counsel during initial questioning about insurance fraud. She meets briefly with an attorney that evening. The following morning officers question her again without counsel present. The statements are inadmissible because the invocation requires counsel's presence at any later custodial interrogation.
Rajesh Rao is locked in a small room at the station and questioned for an hour about missing funds without any warnings. He eventually admits taking the money. The admission is inadmissible because no warnings were given before custodial interrogation began.
Rhea Reynolds receives Miranda warnings while in custody. She remains silent for several minutes as officers ask about the alleged offense. When she finally answers one question, the answer may be treated as an implied waiver under the governing standard.
Roberto Reyes receives no Miranda warnings during custodial questioning following his arrest. He makes incriminating statements that the government later offers at trial. The statements are inadmissible because the required warnings were never given.
Officers may resume questioning about a different offense after scrupulously honoring the invocation by stopping immediately, waiting a significant period, and giving fresh warnings. The Edwards rule requiring counsel applies only to invocations of the right to counsel, not the right to silence.
Supporting sources
Yes. The Fifth Amendment prohibits the prosecution from inviting the jury to treat the defendant's silence as evidence of guilt. Such comments penalize the exercise of the privilege and require reversal when they cross from discussing the evidence to highlighting the personal decision not to testify.
Supporting sources
A suspect must clearly and unambiguously assert the right. Remaining silent after receiving warnings does not by itself invoke the protection, and answering even one question can constitute an implied waiver.
Supporting sources
No. An ambiguous remark such as "Maybe I really should have a lawyer" does not clearly invoke the right to counsel or silence. Officers may continue questioning unless the suspect makes an unambiguous request.
Supporting sources
…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…