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The State Can Comment on a Defendant Remaining Silent in Some Instances

The Constitution provides that no person can be compelled to make any incriminating statements against him/herself.  This means that when the police believe a person was involved in a crime and want to ask him/her questions about it, that person has a right to refuse to talk to the police.  Usually, that is the smart thing to do.  If that person is later arrested and charged with a crime, the state cannot use the fact that the person decided to remain silent against him/her in court.

This Fifth Amendment right to remain silent also means that a defendant does not have any obligation to testify at a criminal trial.  The defendant can always remain silent at the trial, and the state cannot make any negative comment about the defendant failing to provide his/her side of the story in court.

The Fifth Amendment does not protect a defendant in all situations when it comes to a person’s silence or comments about a potential crime.  For instances, the state can comment about a defendant’s silence after the defendant has waived his/her right to remain silent.

For instance, in many situations, a suspect is arrested and brought to the police station to give a statement.  After the suspect hears his/her legal rights, the suspect decides to waive his/her Fifth Amendment rights and give a statement to police.  If the suspect is later charged, goes to trial and testifies giving a different statement or adding new information at trial, the state can ask questions about the defendant’s silence regarding any new information brought out at trial.  In other words, the state can ask the defendant why he/she did not tell these things to the police back when the suspect spoke to them after the arrest.  The implication of such questioning is that the defendant made up this new information in the time period leading up to the trial.  The state can also comment on any inconsistencies between the defendant’s statement to the police initially and the defendant’s different testimony at trial.  The state can argue to a jury that these discrepancies and inconsistencies are evidence of the defendant’s guilt.

For most suspects, the best course of action is often to exercise their Fifth Amendment rights and remain silent initially when confronted by the police.  At that early stage, the police hold all of the cards, and a suspect might be giving a statement without having sufficient information or knowing where the police are coming from and where they are going.  It is dangerous to give up one’s constitutional rights in a situation where the suspect is handicapped with limited information or being misled by the police, which is often the case  A suspect can always provide a statement at a later date after having spoken to a criminal defense lawyer and being informed of all of his/her rights and the consequences of the different options.