Before 2013, I used to advise my clients to shut up – to not say anything at all. It was my view, and the view of most lawyers, that this was an appropriate exercise of the right to remain silent under the Fifth Amendment to the US Constitution.
That changed with Salinas v. Texas. As Justice Alito put it in the opening to his majority opinion:
Petitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer’s question. It has long been settled that the privilege “generally is not self-executing” and that a witness who desires its protection “ ‘must claim it.’ ” …. Although “no ritualistic formula is necessary in order to invoke the privilege,” … a witness does not do so by simply standing mute. Because petitioner was required to assert the privilege in order to benefit from it, [his] Fifth Amendment claim is [rejected].
This means you cannot simply remain silent in order to be protected by the Fifth Amendment. You have to assert that right. That could be a Catch-22 – in order to assert your right to remain silent you might have to say it, and thus not be silent.
So I thought putting it on a card would allow people to assert the right to remain silent without having to break silence. As lawyers we don’t want our clients to talk – not a single word. Hold up the Fair DUI flyer, or anything else that says “I Remain Silent” or something similar, and you’re protecting yourself under the Fifth while remaining silent.
I see activists on YouTube videos asking questions like “Am I being detained?”; or “Am I free to go?”
Stop. They’re stupid questions. They may look good on a YouTube video but they don’t help in a court of law. Shut up. Not one word. The police officer will tell you when you’re free to leave.