right to remain silent | Definition

Doc's CJ Glossary by Adam J. McKee


Course: Introduction / Policing / Procedural Law

The right to remain silent comes from the Fifth Amendment’s protection from compelled self-incrimination; as with most constitutional rights, the right to remain silent can be waived.

The right to remain silent is a fundamental principle in the criminal justice system, derived from the Fifth Amendment of the U.S. Constitution. This amendment protects individuals from being compelled to incriminate themselves in a criminal proceeding. It is an essential safeguard against coerced confessions and other forms of compelled self-incrimination.

The right is often invoked during police interrogations, where suspects are questioned about their involvement in a crime. When a suspect invokes their right, they are indicating that they do not wish to answer any questions that may incriminate them in the crime being investigated.

While the right is a constitutional right, it can be waived by the individual. This means that a suspect can choose to speak to law enforcement officers and answer questions, even if it may be incriminating. However, it is important to note that any statements made after the right has been invoked may be inadmissible in court unless the suspect has waived their right and agreed to continue speaking to law enforcement.

The right to remain silent has been the subject of numerous legal challenges and landmark court cases. One of the most well-known cases is Miranda v. Arizona (1966), which established the Miranda warning, a set of guidelines that law enforcement officers must follow when questioning a suspect. The warning informs the suspect of their right to remain silent and their right to an attorney, among other things.

Other cases, such as Berghuis v. Thompkins (2010), have clarified the circumstances under which the right to remain silent can be invoked. In Berghuis, the Supreme Court ruled that a suspect must affirmatively invoke their right to remain silent, rather than simply remaining silent, in order for the right to be considered invoked.

The right to remain silent is an essential protection for individuals accused of a crime. It ensures that they cannot be compelled to incriminate themselves and is a fundamental aspect of due process in the criminal justice system. While the right can be waived, it is important for individuals to understand the potential consequences of speaking to law enforcement officers and the importance of invoking their right to remain silent when necessary.

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Last Modified: 03/13/2023


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