The Right to Remain Silent: Brief Analysis


In the movies depicting criminal investigations, viewers often see that the accused appeal to their right to remain silent and speak only in the presence of their attorneys. The right to keep silent is indeed existent, and it is prevalent not only in the US judicial system but also in many other countries. It became widely known after the landmark decision Miranda v. Arizona made by the US Supreme Court in 1966 (Geer et al., 2019).

Although people are generally aware of this right, they may not understand where it stems from and why it is important to invoke it during interactions with law enforcement. This essay aims to explain the reasons for refraining from speaking to the police and discuss the source and the significance of the right to remain silent. It will be argued that answering police officers’ questions can do more harm than good, even if the person is innocent, because the words said to the police may be used against the individual in court. Fortunately, one can avoid it by exercising the right not to testify against oneself, which is guaranteed by the Fifth Amendment.

Reasons for Not Speaking to the Police

Talking to law enforcement officers may seem a good idea, especially when one is confident of being not guilty and wants to convince the police of one’s innocence. However, answering their questions can be risky because individuals may accidentally say something that would incriminate them. Professor James Duane has compiled a list of seven reasons why people should abstain from speaking to the police (NicosMind, 2012). The first one is that everything a person says to law enforcement officers can be used against him or her in court (NicosMind, 2012). At the same time, people’s words cannot be utilized for their benefit in a trial.

This is because, according to the Federal Rules of Evidence, if, during the interrogation, police officers retrieve the information that would help the person, it cannot be used in court since it is considered hearsay (NicosMind, 2012). Thus, by speaking to the police, individuals have no opportunity to say something that would benefit them in future trials because such words are not regarded as evidence. However, the chances that they would incriminate themselves increase with every released piece of information.

Another reason why people should not talk to the police is that admitting their guilt will not bring them any advantage. Professor Duane argues that making a confession may harm the suspect even if the police know that this person committed a crime (NicosMind, 2012). This is because, without a confession, a case can be dismissed under certain circumstances, but if the suspect has confessed, the confession can be admissible in court, and this person may be convicted (NicosMind, 2012).

Even innocent people can be found guilty if they agree to make a false confession. For example, Professor Duane cites the case involving Eddie Joe Lloyd, a mentally ill man who was convicted of murder in 1984 because police officers persuaded him to confess (NicosMind, 2012). The confession was meant to help find the real murderer, but instead, it was used against Lloyd. As a result, the man spent 17 years in prison until the DNA testing showed that he was innocent. This case vividly demonstrates that admitting guilt can lead to deplorable consequences, especially when confessions are made by the innocent.

Further, when talking to the police, even an innocent person can tell something that will serve as the base for conviction. Professor Duane says that, during an interrogation, an innocent person can make a small mistake or tell a little lie, and it may be used against this individual in court (NicosMind, 2012). Officer George Bruch from Virginia Beach Police Department adds that police officers are allowed to lie during interrogations, but interviewees are prohibited from doing so (NicosMind, 2012). This is because lying to law enforcement can be regarded as making false statements or obstruction of justice, which are considered crimes and are punishable.

However, according to Professor Duane, even if people tell only the truth, they also can be convicted because they may share some information that would incriminate them (NicosMind, 2012). It may happen because almost any person has done something illegal at some point in life, which may be as simple as exceeding the speed limit. During interrogations, individuals usually feel stressed and may not realize that the information they tell is incriminating them. Therefore, one should avoid talking to the police without an attorney.

Even if individuals strictly control what they say to the police, there may be circumstances that will lead to their accusation. Police officers are humans; therefore, they are subject to making mistakes. Professor Duane points out that they can forget the exact wording of their questions used during an interrogation or misremember the given answers (NicosMind, 2012). He cites an example in which a police officer asks the interviewee about a shooting and receives an answer that the respondent has never used or touched a gun (NicosMind, 2012). However, the police officer may forget that he mentioned a shooting. In court, he may say that the defendant was the first to speak of a gun since the police officer said they were investigating a murder, not a shooting. In this situation, the judge is more likely to believe the law enforcement representative rather than the defendant, and this testimony may serve as the grounds for conviction.

Finally, there may be circumstances completely out of the person’s control, which may lead to incrimination. Professor Duane depicts an almost impossible situation when the individual tells only the truth and does not say anything incriminating, and all the police’s questions and the individual’s answers are videotaped (NicosMind, 2012). Even these circumstances do not guarantee that the person may not be convicted.

This is because the police can happen to possess unreliable or mistaken evidence that will indicate that the individual’s truthful answers are false (NicosMind, 2012). For example, officers may find a witness who will disprove the interviewee’s alibi, even though this person did not lie about his or her location at the given time. Thus, one may conclude that people should not talk to the police because there are many ways how they can incriminate themselves. One should not rely on one’s innocence or eloquence when interacting with law enforcement officers because once information is released, it may cause harm but cannot bring any benefit.

The Source of the Right to Remain Silent

It may be argued that people received protection during interrogations after the Bill of Rights was ratified in 1791. Among the ten amendments included in the Bill of Rights, the Fifth Amendment is particularly concerned with protecting individuals during interviews with the police. It says, “No person… shall be compelled in any criminal case to be a witness against himself” (Geer et al., 2019, p. 330). It means that all people are allowed not to share information that would incriminate them.

Some individuals may think that invoking the right provided by the Fifth Amendment suggests that the person tries to conceal his or her guilt. The Supreme Court noted in Ullmann v. United States that “Too many … view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege” (NicosMind, 2012, 17:31). However, the right to remain silent is the privilege available to both the guilty and innocent. As the Supreme Court stated in Ohio v. Reiner, “One of the Fifth Amendment’s basic functions is to protect innocent men who otherwise might be ensnared by ambiguous circumstances” (NicosMind, 2012, 16:04). Thus, US Constitution gives people an opportunity to preserve their innocence.

At first, the Fifth Amendment only protected people from being compelled to testify against themselves. The Supreme Court objected to forced confessions because they were unreliable by their nature (Geer et al., 2019). However, in Miranda v. Arizona, the Court decided that people had the right not to testify against themselves even when no force was applied to get the confession (Geer et al., 2019). Since the time this case was decided, police officers have been obliged to give the Miranda warning to all people in custody prior to an interrogation. This warning informs individuals of the three things:

  1. they have the right to remain silent,
  2. anything they say may be used against them, and
  3. they have the right to an attorney, free if they cannot afford one” (Geer et al., 2019, p. 322).

If people explicitly invoke their rights from the Miranda warning, the information they share afterward is considered inadmissible. One should note that the Miranda warning is given only in custody. If police officers approach someone in the street and start asking questions, they are not obliged to remind individuals of their rights.

The Significance of Invoking the Right to Remain Silent

By refusing to talk to the police, a person invokes the right to keep silent. This right has a large significance because it helps individuals get a grip on the situation. Once one has shared the information with the police, the control over one’s words is lost. Therefore, it is important not to speak to the police without an attorney to avoid releasing any compromising information. As the Supreme Court pointed out, “Truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker’s own mouth” (NicosMind, 2012, 16:12). Thus, one should bear in mind that anything told to the police may serve as evidence against a person but not for his or her benefit.

One may wonder why police officers would want to use people’s words against them. Officer Bruch explains this by the difference in the goals pursued by police officers and individuals undergoing an interrogation (NicosMind, 2012). He argues that interviewees are the only people who want to leave the interrogation room quickly (NicosMind, 2012). Police officers, on the contrary, do not mind spending much time conducting an interview because their purpose is to get a confession (NicosMind, 2012). Therefore, they may ask a large number of various questions to retrieve information that would point to the person’s guilt.

Further, it is important to remember that police officers are allowed to lie during the interrogation, while individuals are prohibited from telling anything but the truth. Interrogators may use this fact in their favor to obtain a confession. For example, Officer Bruch shared a case in which the suspect was encouraged to write an apology letter to the victim (NicosMind, 2012). The police officer said to the suspect that the victim could shorten the prison sentence, which was a lie because victims had no control over the sentences (NicosMind, 2012). As a result, the person was convicted because the apology letter served as a handwritten and signed confession. Overall, police officers are much more experienced in conducting interrogations than any average person. Therefore, trying to outsmart them when answering their questions is likely to result in a failure, that is, disclosure of incriminating information.

Finally, the right to remain silent is indirectly related to the Fourth Amendment. The Fourth Amendment forbids police officers to perform unreasonable searches or seizures (Geer et al., 2019). Many searches, especially if they are conducted in private areas such as people’s homes, require a warrant, and a warrant should be supported by probable cause (Geer et al., 2019). By talking to the police, a person may share information that would help officers to establish probable cause and, thus, obtain a warrant for the search. Hence, exercising the right to keep silent allows the person to enjoy protection from unreasonable searches.

Overall, exercising the right to keep silent is essential for remaining innocent and is recommended by many lawyers. For example, Justice Jackson once said that “any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstances” (NicosMind, 2012, 3:41). This is because if one speaks to the police before consulting an attorney, one may provide officers with incriminating information. As a result, the lawyer may not be able to fix the situation afterward, and the wrong person can be imprisoned. Evidence shows that over 25% of DNA exonerations involve innocent people’s making incriminating statements or false confessions (NicosMind, 2012). Consequently, even when one is confident of one’s innocence, one should refuse to talk to the police until the arrival of the attorney.


To sum up, people’s right to keep silent when approached by the police is guaranteed by the Fifth Amendment, which protects individuals from testifying against themselves. Although those undergoing an interrogation may be sure of their innocence and tell only the truth, there may be circumstances under which their words may appear to be incriminating. It may happen because police officers make mistakes, are allowed to tell lies, and generally possess more information and interrogation experience than suspects. Therefore, whenever one has to interact with the police, one should refrain from telling them anything beyond one’s name. Individuals should invoke their rights mentioned in the Miranda warning and speak to the police only in the presence of an attorney.


Geer, J. G., Herrera, R., Schiller, W. J., & Segal, J. A. (2019). Gateways to democracy: An introduction to American government (Enhanced 4th ed.). Cengage Learning.

NicosMind. (2012). Don’t talk to the police/cops | James Duane [Video]. YouTube. Web.

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