What is the right to remain silent?

The right to remain silent is the Fifth Amendment privilege against being compelled to testify against yourself in a criminal case, and it allows a person under arrest or accused of a crime to refuse to answer questions. The Fifth Amendment, ratified on December 15, 1791, declares that no person shall be compelled in any criminal case to be a witness against himself. The privilege applies in court testimony, before grand juries, in congressional hearings, in administrative tribunals, and during custodial interrogation by police.

The Supreme Court built the modern right to silence in a series of cases. Brown v. Mississippi (1936) excluded confessions obtained by physical torture. Miranda v. Arizona (1966), the most famous of these cases, required police to give a specific set of warnings before custodial interrogation. The Miranda warning informs suspects that they have the right to remain silent, that anything they say can be used against them, that they have the right to an attorney, and that an attorney will be appointed if they cannot afford one. Confessions obtained without these warnings are generally inadmissible at trial.

Berghuis v. Thompkins (2010) held that suspects must explicitly invoke the right to silence to stop questioning, although Edwards v. Arizona (1981) and Miranda itself bar further questioning once a suspect requests counsel. Salinas v. Texas (2013) held that pre-arrest silence not preceded by an express invocation of the privilege may be admitted as evidence.

The right covers testimonial communications, meaning statements that reveal the contents of a person's mind. It does not protect compelled production of physical evidence such as fingerprints, blood samples under Schmerber v. California (1966), handwriting exemplars under Gilbert v. California (1967), or voice samples. Doe v. United States (1988) allowed compelled signatures on consent forms because they convey no information. Cell phone passcodes have produced split decisions in lower courts, with some treating them as testimonial and some as physical.

The privilege protects only natural persons, not corporations or other artificial entities under Hale v. Henkel (1906). Courts may impose civil consequences such as adverse inferences in non-criminal proceedings, although Lefkowitz v. Turley (1973) bars discharging a public employee for invoking the privilege without immunity. The right to remain silent does not include the right to lie.

Naturalization candidates should know that anyone in the United States who is questioned by police, summoned before a grand jury, or called as a criminal trial witness may decline to answer questions on Fifth Amendment grounds.