Also known as:silences · right to silence · silence as consent
Written by attorneys · grounded in primary & secondary sources — see below
2 senses
1
in property and contract law
An omission to speak or act that communicates an intention to modify or terminate a legal relation. The omission supports estoppel or acceptance when the circumstances make it reasonable to foresee reliance and the other party substantially and detrimentally changes position in reasonable reliance on the omission.
2
Sense 1
1
in property and contract law
An omission to speak or act that communicates an intention to modify or terminate a legal relation. The omission supports estoppel or acceptance when the circumstances make it reasonable to foresee reliance and the other party substantially and detrimentally changes position in reasonable reliance on the omission.
Sources & Authorities· 2 sources
Select any source to read its text and confirm it supports the definition.
Restatements
Sense 2
2
in criminal procedure
The choice not to speak during custodial interrogation or at trial. The choice does not automatically invoke the Fifth Amendment privilege unless clearly asserted, and the prosecution may not comment on or penalize the choice as evidence of guilt.
Sources & Authorities· 3 primary sources
Select any source to read its text and confirm it supports the definition.
The choice not to speak during custodial interrogation or at trial. The choice does not automatically invoke the Fifth Amendment privilege unless clearly asserted, and the prosecution may not comment on or penalize the choice as evidence of guilt.
Each sense below has its own examples, sources, and questions.
Examples2
Neighbor Relies on Easement Owner Silence
Skylar Sullivan owns land burdened by an easement allowing Sylvia Santos access across it to reach her property. Sullivan stops maintaining the path and remains silent when Santos begins building a permanent driveway on the route. Santos completes the driveway at substantial cost. Sullivan later seeks to enforce the original easement terms. The court treats Sullivan's prolonged silence as communicating an intention to modify the servitude, estopping enforcement because Santos reasonably relied on the omission.
Constitutional Text Omits Procedure
A federal statute contains no provision addressing whether one house of Congress may veto executive action. A party argues that the statute's silence permits such a veto. The court holds that the Constitution's own silence on the precise mechanism requires examination of separation-of-powers principles rather than inferring authority from the omission alone.
Frequently Asked2
When does silence operate as acceptance of an offer?+
Silence operates as acceptance only in limited cases, such as when the offeror has stated or given the offeree reason to understand that assent may be manifested by silence and the offeree intends to accept by remaining silent.
Supporting sources
Is a person's silence in the face of an accusation treated as an adoptive admission?+
Sometimes. Under the real and knowing test, silence may be treated as an adoptive admission if, considering all circumstances, the party's silence justifies the conclusion that the party knowingly agreed with the statement.
Supporting sources
Examples4
Suspect Answers After Warnings
Sydney Santos is arrested and given Miranda warnings. She stays silent for several minutes before answering one question about her whereabouts. At trial the prosecution offers her later statement. The court admits the statement because her initial silence did not clearly invoke the right to remain silent and her response constituted an implied waiver.
Prosecutor Comments on Failure to Testify
Santiago Sanchez is tried for theft. He does not take the stand. During closing argument the prosecutor highlights that Sanchez never explained his presence at the scene. The trial judge allows the comment. On appeal the conviction is reversed because the comment on Sanchez's silence violated the Fifth Amendment by treating it as substantive evidence of guilt.
Silence Used to Rebut Insanity Defense
Seth Shapiro raises an insanity defense at trial. After receiving Miranda warnings he remained silent during police questioning. The prosecution offers evidence of that silence to show he was not mentally ill. The court excludes the evidence because using post-warning silence to rebut the defense violates the implicit assurance that silence carries no penalty.
Suspect Invokes Silence After Warnings
Samuel Soto is in custody and receives Miranda warnings. When asked about the incident he states he wishes to remain silent. Police immediately stop questioning. The court later suppresses any further statements because Soto clearly invoked his right to silence and questioning did not resume until he initiated further communication.
Frequently Asked2
Does silence after Miranda warnings always invoke the right to remain silent?+
No. Silence alone does not invoke the right. The suspect must clearly and unambiguously assert the right. Answering even one question after warnings can constitute an implied waiver.
Supporting sources
Can the prosecution comment on a defendant's failure to testify?+
No. The Fifth Amendment prohibits the prosecution and the trial judge from commenting on the defendant's silence at trial. Using that silence as substantive evidence of guilt violates the privilege against self-incrimination.
Supporting sources
376 U.S. 254 (1964)Remedies
…remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by lawthe argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should…