Remain Silent


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.

338 replies on “Remain Silent”

  1. You have to read it and understand it. It states:

    Any person who willfully refuses to accept and sign a summons as provided in subsection (2) commits a misdemeanor of the second degree.

    The key phase here is: “subsection (2)” Which states:

    (2) Except as provided in ss. 316.1001(2) and 316.0083, any person cited for a violation requiring a mandatory hearing listed in s. 318.19 or any other criminal traffic violation listed in chapter 316 must sign and accept a citation indicating a promise to appear. The officer may indicate on the traffic citation the time and location of the scheduled hearing and must indicate the applicable civil penalty established in s. 318.18.

    The key phase here is: “violation requiring a mandatory hearing”

    Must read and understand first.

  2. When will a Fair DUI Flyer be available for Illinois? Citizens do not realize that the police can legally lie to you and legally you can not. This is very valuable information to protect innocent citizens with knowing their rights during a checkpoint. Police and prosecutors depend on citizens being ignorant of the law.

  3. Could you make a flyer for New Mexico please. We have nothing but oath breakers out here. Thank you for your time.

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