Do I Really Have the Right to Remain Silent After Getting Arrested?

People who have not had any previous contact with the criminal justice system sometimes wonder if it is really the case that they have the “right to remain silent” after getting arrested. Not talking sometimes feels like the opposite of what a person wants to do when they find themselves accused of a crime. Their instinct tells them that they should explain themselves to the police, and that if they do, then the problem will get sorted out.

Unfortunately, that is not how the criminal justice system works. In reality, a person who has been arrested cannot hope to talk their way out of the situation. In fact, talking always makes their predicament worse.

Why We Have a Right to Remain Silent

Anyone – regardless of their citizenship or nationality – arrested for committing a crime in the United States has the right to remain silent. The United States Constitution guarantees that right, as do the constitutions of the individual States. The right to remain silent means a person who has been arrested has no obligation to answer questions, or to explain themselves, or to confess to anything. The fact that they stayed silent cannot be used against them later, either.

The Founders gave us the right to remain silent to protect one of the most important aspects of personal liberty: that we cannot be forced to be witnesses against ourselves. It’s a right that distinguishes a society based on the rule of law from a one that operates under authoritarianism and tyranny. It protects all of us against abuses of power, especially the use of violence to extract a confession.

In other words, someone who tries to talk their way out of an arrest gives up a basic fundamental right that has enormous legal and personal value to them, and gets nothing in return. In fact, talking almost always gives law enforcement and prosecutors ammunition to use in pursuing a criminal charge.

How to Exercise The Right to Remain Silent

It is never a good idea to give up your right to remain silent. Instead, if you find yourself arrested and accused of a crime:

• Do not resist.
• Be polite.
• Say you would like to speak with an attorney; and
• Say nothing further to anyone until you and an attorney have spoken.

Remember, following these steps is your absolute right. No one can take it away from you. No matter how unnatural or strange it feels to seal your lips and not say a word when someone has accused you of a crime, that is the best possible thing you can do in the moment to protect yourself, your rights, and your future freedom. By staying silent, you lose nothing, and you gain the ability to have a criminal defense attorney help you plan a response to a criminal charge that best serves your interests.