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The Fifth Amendment Protects a Person’s Right to Remain Silent Before Arrest and Before Miranda Warnings

Most people understand that everyone has a Constitutional right to remain silent. This is a right afforded to people in the Fifth Amendment to the U.S. Constitution and the Florida Constitution. As many people are aware, this means that the police cannot force you to give a statement or say anything that might be used as evidence against you in a criminal case. It also allows you to refuse to testify at a criminal trial. If you do exercise your right to remain silent upon arrest, after arrest or at trial, the state cannot use your silence against you. That means the state cannot imply during your criminal case or at trial that you remained silent because you are guilty. The state cannot make any suggestion to the jury about your decision to remain silent or why you made that decision.

One question that occasionally comes up is when this right to remain silent becomes relevant. It is clear that a person is protected by the Fifth Amendment upon an arrest, in all pretrial proceedings and at the trial. Does a person have the same protection before an arrest?

In a murder case near Jacksonville, Florida, the police responded to a shooting and found a dead body in the same house as the defendant. The police asked the defendant several questions about the situation, but the defendant did not answer. At this point, the defendant was not under arrest and had not been informed of the Miranda warnings which discuss the right to remain silent, among other rights. The defendant was ultimately arrested for murder. At the trial, the state put the police officer on the stand and asked him a variety of questions about how he asked questions of the defendant at the crime scene, but she remained silent. The state used this testimony to suggest her silence was evidence of her guilt. The defendant did not testify at the trial.

The defendant was convicted of murder, but her criminal defense lawyer appealed arguing that the Florida Constitution protects a person from having to make any statements even before an arrest and Miranda warnings are given. The Florida Supreme Court agreed. The Florida Constitution provides that no person shall be forced to be a witness against oneself in any criminal matter. This is considered a very significant right under Florida law and is broadly construed to favor the defendant. Normally, this right attaches upon an arrest, but Florida interprets its Constitution to protect someone even before an arrest or Miranda warnings. The Court found that the right to remain silent exists whether Miranda warnings are given or not. The fact that the police officer notifies a person of his/her right to remain silent does not activate that right or make it more effective.

In conclusion, the state in Florida cannot use a defendant’s silence before arrest and before Miranda warnings at trial to suggest that silence is evidence of the defendant’s guilt. It violates the defendant’s Constitutional right to remain silent as it puts the defendant in a position to feel compelled to produce evidence to refute the implication of guilt, which is not Constitutional. However, if a defendant does testify at trial and the defendant’s pre-arrest silence is inconsistent with that trial testimony, the state can likely use the pre-arrest silence to impeach the defendant at trial.