Using Your Right to Remain Silent in a Federal Criminal Investigation

Using Your Right to Remain Silent in a Federal Criminal Investigation

Being questioned by federal agents can be an intimidating and stressful experience. Many people feel compelled to talk and explain themselves, even if it ends up being used against them. However, you have a powerful right guaranteed by the Fifth Amendment to remain silent. Exercising this right properly is essential to protecting yourself in a federal criminal investigation.

The Right to Remain Silent

The Fifth Amendment states that no one “shall be compelled in any criminal case to be a witness against himself.” This gives you the right to refuse to answer questions asked by federal agents during an investigation. The commonly used name for this right is the “right to remain silent.”

The right to remain silent serves an important purpose – it prevents the government from coercing confessions or self-incriminating statements. The burden is on the government to build their case with evidence. Your statements cannot be used to provide that evidence.

Invoke Your Right to Remain Silent

To take advantage of your Fifth Amendment right, you must clearly invoke it. Simply staying silent or saying nothing is not enough – you must state your intention to rely on your right not to answer questions. This must be an unambiguous declaration like “I invoke my right to remain silent” or “I have nothing to say.”

The Supreme Court has made clear that anything less than an unambiguous invocation will not properly trigger your right to remain silent [Berghuis v. Thompkins]. So you must clearly state you are invoking the Fifth Amendment for all questions.

When to Invoke Your Right

You can invoke your right to remain silent from the very first contact with federal agents. You are not required to engage in small talk or even identify yourself. Politely state you are invoking your Fifth Amendment right and will not be answering any questions.

Of course, refusing to identify yourself may lead to detention while agents try to confirm your identity. But you still have a right not to answer any questions about an investigation.

You should also re-invoke your right to remain silent before each interview or interrogation session. Agents may try asking questions again hoping you let something slip. So always re-assert your intention to rely on the Fifth Amendment.

What Happens After You Invoke Your Rights

After you invoke your right to remain silent, federal agents must stop asking investigative questions. Any statements you make after invoking your rights will likely be inadmissible as evidence. So do not let yourself get drawn into “just answering a few questions.” Stick to your declaration.

However, the government can still continue to build a case and use evidence from other sources against you. You may still face charges down the road.

In some circumstances, the government may offer you immunity from prosecution in exchange for answering questions. This means nothing you say can be used against you. However, lying to federal agents is still a crime even with immunity. So be very cautious before accepting any such offers – consult with a lawyer first.

Common Mistakes to Avoid

When relying on your right to remain silent, there are some key mistakes you need to avoid:

• Never lie or provide false information – this itself may constitute a crime.
• Do not engage in small talk or casual conversation – stick to relying on your Fifth Amendment right.
• Do not let exceptions or follow-up questions trick you into talking – re-invoke your right to silence.
• Never discuss your intention to invoke the Fifth Amendment right beforehand with anyone besides your attorney.
• Do not discuss the facts of your case with cellmates if you are detained – assume you are being monitored.

A properly trained federal agent will be skilled at getting people to talk, even subtly. Do not let your guard down – stick to your declaration.

Speaking With Your Attorney

Your right to remain silent does not apply when speaking to your attorney. Anything you tell your lawyer is considered privileged and confidential. So be completely open when discussing your case.

If you do not have an attorney yet, you should request one before submitting to custodial interrogation. Federal agents may use questionable tactics if you are without counsel.

Understanding the Consequences

While exercising your right to remain silent is your best defense, you should understand it may have consequences. Prosecutors may comment to the jury about your refusal to testify or cooperate. And some federal judges consider it when determining sentences. However, staying silent is still the wisest legal move in most cases.

Relying on your Fifth Amendment right requires discipline and resolve when facing intense pressure from federal agents. But properly invoking your right to remain silent prevents self-incrimination and protects your legal defenses. So gather your courage and stick to the four simple words: “I invoke my rights.”

Berghuis v. Thompkins
Fifth Amendment, Legal Information Institute