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Boston University School of Law




This paper concerns a well-known, but badly misunderstood, constitutional right. The Fifth Amendment to the Constitution guarantees, inter alia, that no person “shall be compelled in any criminal case to be a witness against himself.” For the non-lawyer, the Fifth Amendment protects an individual’s right to silence. Many Americans believe that the Constitution protects their right to remain silent when questioned by police officers or governmental officials. Three rulings from the Supreme Court over the past twelve years, Chavez v. Martinez (2003), Berghuis v. Thomkpins (2010) and Salinas v. Texas (2013), however, demonstrate that the “right to remain silent” that most Americans think they possess does not exist.

This article will show that the right to silence and the Fifth Amendment are not the same. Indeed, the result and reasoning of Salinas demonstrate that the Fifth Amendment does not afford an individual, who has neither been indicted, nor arrested, nor temporarily detained by police, a right to remain silent in the face of police interrogation.


Published as: "The Right to Silence v. The Fifth Amendment," in Symposium Policing in the 21st Century: The Importance of Public Security Policing the Police, 2016 University of Chicago Legal Forum 255 (2016).

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