Staying quiet is not the same as invoking your right to remain silent. A suspect can sit through hours of police questioning without saying much, answer one question at the end, and have that answer used at trial. In Wisconsin, the words you say in the interview room matter as much as the ones you hold back.

The Fifth Amendment Is the Right. Miranda Is the Warning.

The Fifth Amendment states that no person can be forced to testify against themselves in a criminal case. Article I, Section 8 of the Wisconsin Constitution provides for similar protection. This right follows you everywhere: on the road, at your front door, and in the courtroom.

Miranda v. Arizona, decided 60 years ago this June, added warnings that police must give before questioning someone who is in custody. These warnings apply only if two conditions are met:

• You are in custody, which means a reasonable person in your situation would not feel free to leave the situation.
• Officers are interrogating you through direct questions or techniques they know are likely to elicit an incriminating response.

No custody, no warnings. That’s why officers often start with “You’re not under arrest.” The Fifth Amendment still protects you during that conversation, but Miranda doesn’t.

Silence Alone Does Not Protect You

Two U.S. Supreme Court decisions explain why.

In Berghuis v. Thompkins (2010), the suspect remained largely silent for nearly three hours during questioning. Then, he answered “yes” when asked if he had prayed to God for forgiveness after the shooting. The court held that he had not invoked his right to remain silent and had waived that right by answering.

In Salinas v. Texas (2013), the man voluntarily answered questions before being arrested, but went silent when asked about shotgun shells. Because he had never said he relied on the Fifth Amendment, the prosecutors were able to use his silence in court.

Wisconsin applies the same standard. In State v. Cummings, 2014 WI 88, the Wisconsin Supreme Court held that an invocation must be unequivocal. If a reasonable officer could understand your words in some other way, questioning can continue.

How to Invoke Your Rights the Right Way

Use plain words that leave no room for interpretation: “I am invoking my right to remain silent. I want a lawyer.”

Then, follow through:

• Stop talking. Answering even one additional question may be considered a waiver of your rights.
• Don’t hedge your answers. “Maybe I should consult a lawyer” may give officers permission to continue questioning.
• Do not sign any rights waiver forms.
• Stay calm and do not lie. Giving false information knowingly can lead to additional charges of obstructing justice.
• If questioning resumes, simply repeat the same statement you gave before.

Asking for a lawyer carries extra weight. Once you clearly request counsel, the police must stop questioning until a lawyer is present, unless you restart the conversation yourself. Invoking silence alone must be “scrupulously honored,” but officers may come back later with fresh warnings. Say both.

Wisconsin Rules That Can Help Your Defense

Under Wis. Stat. § 968.073, state policy is to record custodial interrogations of people suspected of felonies. This recording often becomes the best evidence of when you invoked your rights and how the officers responded. If the police skip the recording without a valid reason, the jury can be asked to consider this.

Already Talked to Police? Call Melms Law Now

Answering questions does not automatically sink your case. A defense attorney can review the recording and check whether you were in custody, whether the warnings were correct, and whether the officers stopped when you asked. Statements taken in violation of these rules can be challenged and excluded from the trial. Melms Law will go through this interview with you and explain in plain language what it means for your case. Contact us today to schedule a free consultation.