The 5th Amendment to the United States Constitution provides that no person “shall be compelled in any criminal case to be a witness against himself.” This means that you are not required to talk to the police if doing so may help build a case against you.
In fact, in situations where the police have detained a person and are asking questions that might illicit an incriminating response, they are required to issue Miranda warnings. And at this point, those warnings have become such a cultural phenomenon that we can all probably quote them, right? “You have the right to remain silent, anything you say can and will be used against you in a court of law . . .”
However, what many Americans don’t realize is that you can’t remain silent simply by remaining silent.
That’s right. I’ll let you read that again:
You cannot invoke your right to remain silent only by remaining silent.
In 2010, the Supreme Court of the United States decided Berguis v. Thompkins, a case about a shooting suspect who was interrogated by police for roughly three hours before offering an incriminating statement. In that case, the suspect was read his Miranda warnings and remained “largely silent” for the better course of three hours. However, he never specifically told the officers that he wished to remain silent or to speak with an attorney, and therefore, the Supreme Court held that he never invoked his 5th Amendment right to remain silent. Sure enough, during the intense hours of questioning, he made a one-word answer to an emotionally charged question, and that answer helped get him convicted.
The takeaway from this case is that in order to remain silent, a person must “unambiguously” invoke their right to remain silent. This means that if you are being questioned by the police about a crime and wish to remain silent, you must actually tell them that you want to remain silent. If you don’t expressly tell officers that you don’t wish to talk, they can continue asking you questions and as often happens, they may persuade you to talk even if doing so is against your own best interest.
However, if you invoke your right to remain silent, police must “scrupulously honor” your right and must cut off questioning.
So, if you find yourself in a situation where police have detained you and are asking you questions about a crime, it is perfectly acceptable to respectfully respond:
“I wish to exercise my Fifth Amendment right to remain silent and I wish to speak to attorney, Donnavon Vasek.” The name of another attorney if you are outside of the state of Tennessee is also acceptable.
The simple fact is, when you’re being interrogated, the police do not have your best interests in mind. And the police are trained professionals—they are taught all sorts of techniques to get you talking, from acting like your friend to telling you that they already have evidence that you are guilty (and yes, they can even make up evidence to persuade you to talk!). What many people don’t realize—and what ultimately gets them into trouble—is what could be implied from even an innocent response to a simple question.
On the other hand, a Defense Attorney is professionally obligated to look out for your interests. Our job is protecting you and your constitutional rights.
The moral of the story is: assert the 5th and then don’t say a word!
Then come talk to us before you talk to the police!