When Can Silence be Used Against You?

You have a 5th Amendmendment right to remain silent. It is almost always in your best interest not to speak to the police. Do not fall for their tricks! They are building a case, not seeking justice.

Michigan Criminal Defense Attorneys - Group

Fifth Amendment to the United States Constitution

The Fifth Amendment to the United States Constitution provides that (among other things) you have the right to remain silent and the right against incriminating yourself. In a landmark ruling and a straining effort to assist law enforcement at the expense of every American’s civil liberties, the court has now ruled that a person cannot stand mute to evoke the privilege automatically. Under the new United States Supreme Court case Salinas v Texas (decided June 17, 2013), the Court ruled that privilege is not self-executing and that a witness who desires to use its protection must affirmatively claim it. In other words, the backward ruling is that the only way to invoke your right to remain silent is to speak. If you fail to assert your right to remain silent, the prosecutor can use your silence against you.

If a person remains silent and does not answer an incriminating question during a custodial interview – this is insufficient to assert the privilege, and the government can use the silence against that person at trial. Under these circumstances, you must state that you assert your Fifth Amendment right not against self-incrimination or risk your silence being used against you.

If there is an official compulsion (you are subpoenaed) to testify, there is no need to expressly invoke the privilege against self-incrimination.

The Supreme Court held that it is not difficult for a defendant to say that they are not answering questions on Fifth Amendment grounds. When there is a failure to do so, that is insufficient to put police on notice that the suspect is relying on their Fifth Amendment right to remain silent. Essentially, the Court has found that police cannot understand silence, and a person must explain why they are silent.

When can silence be used against you?

A witness’s constitutional right to refuse to answer questions depends on his reason for refusing to answer. The court needs to know the reason to evaluate the merits of the Fifth Amendment claim. What burden does this put on the average American unfamiliar with the legal justice system, the explicit terms of the Constitution, and the explicit ruling in this case? In a terrible place because the average person who wishes to remain silent, even innocent people, will justifiably and understandably think that they can just not talk in response to questions and that their Constitution will protect them. Under the new ruling of the Supreme Court, even an innocent person’s silence will be used against them. This is unfortunate and wrong, and for the defense attorney specialists with LEWIS & DICKSTEIN, P.L.L.C., these rulings only motivate us to fight even harder for our clients who are charged with state and federal, misdemeanor and felony criminal offenses.

Michigan Criminal Defense Attorney

A Michigan Criminal Defense Attorney will help when constitutional issues need to be evaluated and assessed.

When you are charged with a felony or misdemeanor offense, and there is a possibility that your constitutional rights have been violated, it is essential that you have legal representation that has experience, knowledge, and expertise in constitutional law issues. The attorneys at LEWIS & DICKSTEIN, P.L.L.C. have decades of combined legal experience in criminal and constitutional law matters. You need to have your rights protected and not allow the government to overstep its bounds.

Call us today at (248) 263-6800 for a free consultation or complete an online Request for Assistance Form. We will contact you promptly and find a way to help you.

We will find a way to help you and, most importantly,
we are not afraid to win!

Contact Us - Michigan Criminal Defense Attorneys