We have all been taught in high school civics class that we have the “right to remain silent” if we ever find ourselves in criminal trouble. But do we? Really? The Fifth Amendment right to remain silent when interacting with the police is one of the most well-known and important provisions within the Bill of Rights. However, recent Supreme Court cases have chipped away at this sacred right. While the criminally accused legally have the right to remain silent, prosecutors in criminal cases have used the accused’s silence against them. In this post, we’ll provide you with more information on your right to remain silent so that you can be more well informed in case the situation should ever happen to you. If it does, don’t hesitate to contact our criminal law firm in Minnesota.

Pre-Arrest Silence

A prosecutor cannot, in almost any circumstance, tell the jury that you chose to remain silent after being read your “Miranda” rights. ¹

During Questioning

However, the Supreme Court recently found in Salinas v. Texas ² that if a person is silent during questioning by police, this silence can be used as evidence if they are eventually charged with a crime. This means that if you suddenly decide to stop answering questions while being questioned by police, or decide to not answer any questions at all, this silence can be used against you in court. As you can imagine, a jury is more likely to presume guilt if a person appears to be uncooperative while talking to police.


Even more egregiously, the Supreme Court has decided that a person’s silence after they are arrested but before being read their “Miranda” rights can be presented to the court in certain circumstances. ³ Although police are supposed to inform you of your rights when you are arrested, your silence before being read your rights but after being arrested can be brought up at trial for an entire jury to contemplate. This is troubling in many ways, including that it gives police an incentive to delay reading a suspect their rights to ensure what they say – or don’t say –can be admitted during a trial.

So What SHOULD I Do During Encounters with the Police?

These strange and arbitrary rules regarding Fifth Amendment silence take a fair amount of research for attorneys to fully understand – let alone the general public. As is often the case, populations that need this legal information the most have the least access to it. While these rules are largely unfair and hard to grasp, judges and juries will not accept ignorance of the law as a defense.

If you are arrested or are asked to speak to the police, you should specifically note your right to remain silent by saying, “I invoke my Fifth Amendment right to remain silent.” Do not simply remain quiet or refuse to answer questions. Even if your invocation of this right might be admissible in court, it is overall better for a judge or jury to hear that you are asserting a right rather than passively refusing to answer a question. It is better to assert this right sooner rather than later, and remember – you are never under obligation to undergo questioning by police without a criminal defense attorney present.

If you’re currently in need of a criminal defense attorney in Minnesota or Wisconsin, contact Karalus Law today.


¹ Doyle v. Ohio, 426 U.S. 610 (1976).

² Salinas v. Texas, 570 U.S. 178 (2013).

³ Fletcher v. Weir, 455 U.S. 603 (1982).