Can prosecutors use your silence against you?

On Behalf of | Mar 7, 2022 | Criminal Defense |

If officers suspect your involvement in a criminal matter, they are likely to want to talk to you. Before questioning you, though, they probably have to advise you of your legal rights. They do so by giving you the Miranda advisement.

Named from a 1966 U.S. Supreme Court opinion, Miranda v. Arizona, your Miranda advisement tells you about your right to remain silent. Still, if you decide to remain silent and not cooperate with the criminal investigation, you may worry about appearing guilty.

Your silence is not evidence

With few exceptions, prosecutors may not use your decision to remain silent against you. Remember, as reporting from the Guardian points out, your right to remain silent comes from your Fifth Amendment right not to incriminate yourself. Therefore, it would be illogical and downright wrong for prosecutors to use your silence as incriminating evidence.

The police can lie to you

Even if you are innocent, remaining silent is usually wise. This is because you are at an extreme disadvantage when you are in a police interrogation room. In addition to being able to lie to you without violating the law, officers may make promises they do not have to keep. By staying quiet, you do not help officers build a case against you.

Your attorney can talk for you

Just as you have a fundamental right to remain silent, you have a right to have an attorney with you during police questioning. Your attorney is likely to have a firmer grasp of criminal law than you do. By letting your attorney speak for you, you avoid saying something you may come to regret.

Ultimately, because the consequences of saying something incriminating usually far outweigh the risks of remaining silent, it is advisable to think twice before talking to the police.


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