Staying quiet is not the same as using your right to remain silent. In 2013, the U.S. Supreme Court ruled that a suspect’s silence before arrest could be used against them at trial because they never clearly claimed protection. That case, Salinas v. Texas, changed how this right worked in practice. Silence by itself is no longer enough.

Silence Alone Will Not Save You

Most people picture the right to remain silent as a shield that turns on automatically. However, it does not. You have to speak up in order to stay silent.

The Fifth Amendment protects you from being forced to testify against yourself. However, courts have narrowly interpreted how this protection applies during questioning:

• If you refuse to answer a question before you are arrested or have your rights read, it can be interpreted as evidence of your guilt if you don’t assert your right to remain silent.
• Once your rights have been read, remaining silent without explicitly invoking your right is not considered a waiver of that right. In Berghuis v. Thompkins, a suspect, remained silent for nearly three hours before saying one incriminating word. The court ruled that he had waived his right by not explicitly claiming it.

The lesson is the same in both directions. Ambiguous silence can hurt you.

How to Actually Invoke It

There are no magic words, but there is a clear way to do this. Say it out loud, plainly: “I am invoking my right to remain silent, and I want a lawyer.” That sentence does two things. It puts police on notice and triggers your right to counsel from Miranda v. Arizona. If officers continue to ask questions, simply repeat the sentence.

When You Should Use It

The short answer is that police can question you about a crime at any time. Being polite and cooperative makes you feel safer, but friendly conversation can still be evidence. You can invoke your rights during a roadside stop, at a police station, before or after being arrested, and before anyone gives you a warning.

This is especially important when:

• You are a suspect, rather than just a witness.
• You don’t fully understand why you’re being questioned.
• You feel pressure to explain or “clear things up”.

Innocent people constantly talk their way into trouble. A lawyer speaks on your behalf so you do not have to guess what is safe to say.

The One Thing You May Still Have to Give

Silence has a narrow exception in Wisconsin: your name. Under Wis. Stat. § 968.24, if an officer lawfully stops you based on reasonable suspicion, they can demand your name and address. The low-risk move is to give your name, then stop there. You do not have to explain where you were going or what you were doing.

Politely state your name, then say the sentence above. This combination protects you from giving officers a new problem.

Get a Lawyer on Your Side Before You Say Anything

Your right to remain silent only works if you use it correctly. And the moments when you need it most are when the police are trained to keep you talking. After invoking it, the safest thing you can do is call an attorney.

Melms Law defends people in Northern and Central Wisconsin from Eagle River to Rhinelander and Minocqua. We treat every client with respect and give straight answers. Flexible payment plans are available for qualified clients. Contact us for a free consultation before talking to anyone else.