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Robert S. Duxstad
Daniel P. Bestul
Lance A. McNaughton

You Have the Right to Remain Silent and You Should Probably Exercise It

Posted: 7.25.2017  |  Author: 


The right of a person to not be compelled in any criminal case to be a witness against himself or herself has a long history in our justice system. Its origins are unclear but it dates back to at least the 15th and 16th centuries. In the American justice system, it serves to protect defendants from choosing between testifying against themselves or lying, which can lead to several other crimes being charged (obstruction of justice, fraud, perjury, etc.). Its more important function is to protect defendants and individuals from questioning tactics by the State and law enforcement that have throughout history yielded often unreliable results (i.e. the Spanish Inquisition). Accordingly, the right is embodied in the Fifth Amendment of the U.S. Constitution and Article I, Section 8 of the Wisconsin Constitution.


The justice system must balance this right with the need for law enforcement to gather information. These competing issues led to the famous Miranda v. Arizona[1] ruling which created the need for law enforcement to provide “Miranda Warnings” to suspects before questioning them. Anyone that has ever watched Law and Order or any other police show is likely familiar with the Miranda Warnings. Miranda Warnings must include informing a suspect to their right to remain silent, that anything they say can be used against the in a court of law, that they has the right to an attorney, and if they cannot afford an attorney one will be appointed for them.[2] Failure by law enforcement to provide Miranda Warnings prior to questioning runs the risk that any answers will be inadmissible in court. Statements given by suspects freely, voluntarily, and spontaneously without being in response to questioning by police will likely be admissible. If a suspect unambiguously requests an attorney, police must stop all questioning until an attorney for the suspect is present.


As a defense attorney, it never ceases to amaze me how many individuals provide statements to police after their Miranda Warnings are given to them only to later regret doing so. Miranda Warnings are not meaningless, routine statements law enforcement give to suspects for fun. They have significant legal implications. Statements made after they have been given are difficult, if not impossible, to keep out of the courtroom. As such, remaining silent or requesting an attorney is usually a good idea.


Despite that apparent bright line rule, the Fifth Amendment continues to be dealt with by courts routinely. In particular, courts struggle with what qualifies as questioning by law enforcement and what qualifies as unsolicited information from suspects when Miranda Warnings have not been given. The Supreme Court of Wisconsin just addressed these issues in State of Wisconsin v. Harris[3]. In Harris, police asked the defendant if he would like give police a statement. The suspect, without having been read his Miranda Rights, replied “[t]hey caught me man, I got nothing else to say.” The Supreme Court of Wisconsin deemed the statement admissible as evidence because the police officer’s question could not reasonably be construed to be an attempt to elicit incriminating evidence from the suspect. Thus, the Fifth Amendment and the right to remain silent only applies to questioning that expressly or through functional equivalence attempts to get self-incriminating evidence from a suspect.


Although the question in Harris was largely academic (the defendant had provided numerous other incriminating statements to police and there was little doubt as to his guilt), Harris highlights the complexity of Fifth Amendment issues as the Supreme Court of Wisconsin disagreed with the Court of Appeals and trial court’s opinion.[4] As such, a criminal defense lawyer cannot emphasize enough the importance for individuals to understand their basic Fifth Amendment rights and to refrain from making potential incrimination statements to law enforcement.



Robert S. Duxstad's practice includes representation for criminal and traffic law, personal injury, civil litigation OWI, in both Green and Lafayette Counties in Wisconsin. He can be reached by e-mail at duxstad@duxstadlaw.com.


[1] 384 U.S. 436 (1966).

[2] Id. at 479.

[3] State of Wisconsin v. Harris, 2017 WI 31 (not yet published in a reporter).

[4] Both the Court of Appeals and trial court ruled the statement inadmissible but, in light of all the evidence, irrelevant to the outcome. The Supreme Court of Wisconsin held the statement was admissible.


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