Most people believe they know the “right to remain silent” by heart. They’ve heard it on TV, in movies, or from friends who’ve had a run-in with law enforcement. But here’s the hard truth: your silence can be used against you, and in some cases, it has been the deciding factor in sending people to prison.
One Supreme Court case out of Texas makes this painfully clear. The defendant was questioned about whether shotgun shells at a crime scene would match those at his home and he went silent. Salinas v. Texas, 570 U.S. 178, 182 (2013). Prosecutors told the jury his silence was proof of guilt, and the United States Supreme Court agreed. Id. at 191.
How did that happen? Because there’s a crucial difference between thinking you’re protected by the Fifth Amendment and actually invoking it.
When Silence Can Hurt You
The law treats police interactions differently depending on your situation:
- In custody, under arrest, and Mirandized – You must clearly state that you are invoking your right to remain silent. And then you must stay silent so you don’t waive the privilege. Berghuis v. Thompkins, 560 U.S. 370, 388–89 (2010).
- Voluntary, non-custodial encounters – Simply keeping quiet does not protect you. Your silence can be used as evidence against you if you fail to invoke the Fifth. Salinas, 570 U.S. at 188.
If you don’t specifically say, “I am exercising my Fifth Amendment right to remain silent,” the courts may view your silence as suspicious, even if you’re innocent.
The Loophole That Traps the Innocent
It feels wrong, doesn’t it? We’ve been told for decades to “plead the Fifth” as if the words were optional. But in reality, the law expects you to speak up to say you won’t speak.
That means the nervous, the confused, and the completely innocent person who thinks staying quiet will keep them out of trouble may actually be setting themselves up for an arrest or conviction.
How to Protect Yourself in Any Police Interaction
If law enforcement wants to question you, whether you’re under arrest or they just “want to talk,” your safest move is to:
- Stay calm and respectful.
- Say the words: “I am exercising my Fifth Amendment right to remain silent.”
- Request an attorney immediately.
- Say nothing else until your lawyer is present.
This applies even if you know you’ve done nothing wrong. Police are trained to gather statements that can be twisted into evidence. The less you say, the less there is to use against you.
The Marc Lopez Law Firm’s Advice: Always Plead the Fifth
At the Marc Lopez Law Firm, we tell clients the same thing we’d tell our own family members:
- Don’t answer police questions without a lawyer present.
- Clearly state that you’re invoking your Fifth Amendment rights.
- Let your attorney speak for you.
This isn’t about hiding something, it’s about protecting yourself in a system that can punish you for doing exactly what you thought was the right thing.
Facing Criminal Charges? We’re Here to Help.
If you’ve been questioned, arrested, or charged with a crime in Indiana, you need more than good intentions, you need an experienced criminal defense attorney. Our team knows how police and prosecutors build cases, and we know how to dismantle them.
Call the Marc Lopez Law Firm today at 317-632-3642. Your first consultation is free, and your future is worth the call.
And remember: always plead the Fifth.