Understanding the 5th Amendment Right to Remain Silent in NYC

The 5th Amendment of the US Constitution states that no person “shall be compelled in any criminal case to be a witness against himself.” This right against self-incrimination is the basis for the “right to remain silent” that many Americans are familiar with from TV shows and movies. However, the scope of this right can be complex and confusing in real life situations. This article will explain when and how you can invoke your 5th Amendment right in New York City.

When Can You Invoke Your Right to Remain Silent?

The right to remain silent applies whenever you are subject to “custodial interrogation” by law enforcement. Custodial interrogation means two things:

• You are in police custody – you have been arrested or your freedom of movement has been restrained to a degree associated with formal arrest.
• You are being interrogated – the police are asking you questions that are reasonably likely to elicit incriminating responses.

Some examples of when you are entitled to remain silent include:

• After you have been arrested and are being questioned by police. This is the classic Miranda situation seen on TV.
• When you are detained by police but not formally arrested (a Terry stop), if the detention becomes custodial in nature and you are interrogated.
• When you are being questioned by police or prosecutors before a grand jury and either are not free to leave or are the focus of a criminal investigation.

However, the right to remain silent does NOT apply in non-custodial situations where you are simply being questioned voluntarily as a witness or even a suspect. For example:

• When police approach you on the street or in a public place to ask questions. You can choose to ignore them and walk away.
• When police visit your home or workplace asking questions. You can ask them to leave and close the door.
• When you voluntarily go to the police station for questioning. You are free to leave at any time.
• When you are testifying as a witness before a grand jury and are not the target of the investigation.

The key is that in non-custodial situations, even if you are a suspect, there is no coercion or detention and thus no 5th Amendment implication. Your choice to speak or remain silent cannot be used against you.

How Do You Invoke Your Right to Remain Silent?

To invoke your 5th Amendment right to remain silent during custodial interrogation:

• You must unambiguously state that you wish to remain silent or do not want to answer questions. Some examples:
  • “I don’t want to answer any questions.”
  • “I invoke my right to remain silent.”
  • “I want a lawyer.”
• Simply remaining silent or refusing to answer specific questions is generally not enough. Police may keep questioning you.
• After invoking your right to silence, police must stop questioning you on that topic, although they can come back later to ask again.
• If you invoke your right to counsel, police must stop all questioning until your lawyer is present.
• If at any point you do decide to talk, you can always re-invoke your right to silence.
• Non-verbal conduct like nodding or shaking your head may also invoke your rights, but it’s better to speak up.

The bottom line is you must clearly exercise your right to cut off questioning. Ambiguous or equivocal statements may not be enough. Don’t rely on just staying silent – tell police you don’t want to talk!

Can Your Silence Be Used Against You?

In general, the 5th Amendment prevents your silence or refusal to answer questions from being used against you during a criminal trial. However, how this plays out depends on the context:

• Post-Arrest Silence: Your refusal to answer questions after receiving Miranda warnings cannot be used as evidence of guilt. Period.
• Pre-Arrest Silence: Your silence or refusal to answer questions before custody or Miranda warnings is trickier. Some courts allow this silence to be used against you on the theory it is not compelled self-incrimination. But other courts bar it. Best to invoke your right clearly.
• Non-Custodial Silence: Your silence when dealing with police voluntarily in non-custodial settings generally can be used against you. There is no 5th Amendment protection since there is no compulsion.
• Civil Trials: Unlike criminal trials, refusing to answer questions in a civil case can lead to your testimony being stricken or negative inferences being drawn by the jury. There is no guaranteed right to remain silent in civil matters.
• Grand Juries: Like civil trials, your silence before a grand jury can be used against you unless you are the target of the investigation and invoke your 5th Amendment right. Witnesses can be compelled to testify.

Bottom line – the right to remain silent is strongest after you have been arrested. In more ambiguous settings, speak up to invoke your rights clearly rather than rely on silence alone.

Can You Change Your Mind After Invoking the Right?

Yes, you can decide to start answering questions after initially invoking your right to remain silent. However:

• The police must “scrupulously honor” your initial invocation of the right and cannot badger you to talk once you’ve invoked your right.
• If police do re-approach you, they should confirm you understand your rights, are choosing to talk voluntarily, and do not need a lawyer present.
• If you change your mind multiple times, the police may become frustrated and a court may not look favorably on this “selective silence.”
• Anything you say after changing your mind can be used against you. There is no “taking back” prior statements.
• You can always re-invoke your rights at any time during the interrogation.

How Can a Lawyer Help?

Having a lawyer during any custodial interrogation or questioning where you are a potential suspect is highly recommended. A lawyer can:

• Advise you on whether to invoke your right to remain silent or answer questions.
• Ensure your rights are not violated if you do choose to talk.
• Object to improper police tactics or lines of questioning.
• Work out a cooperation agreement if you decide to talk in exchange for a deal.
• Help negotiate if you change your mind after invoking your rights.
• Provide a witness to what was said and done during the interrogation.
• File motions to suppress if your rights were violated.

While not always required, having a lawyer present removes a lot of uncertainty around invoking and protecting your 5th Amendment right to remain silent.

Conclusion

The 5th Amendment right against self-incrimination provides important protections when you are under government compulsion to provide evidence against yourself. However, precisely when and how you can invoke the right to remain silent is nuanced and fact-specific. This article has provided some general guidelines for New Yorkers faced with police questioning, but if you find yourself in a custodial interrogation, having a criminal defense lawyer by your side is highly recommended. The stakes are simply too high to go it alone.