[tylercubell]

The part that sticks out to me is:

> It is crucial to note that affirmatively declining to discuss the investigation in the absence of counsel is not the same thing as remaining completely silent. If you are not in custody, your total silence, especially in the face of an accusation, can very possibly be used against you as an adoptive admission under the Federal Rules of Evidence.

I thought we had the right to remain silent. Can someone explain this?

[GavinMcG]

Not sure if there's case law specifically on this point, thus the hedging from the author with "can very possibly". The Supreme Court has ruled that when in custody, it's not enough to simply remain silent – you must invoke the right. And, it's not an invocation that's valid indefinitely. They can try to interview you again after a reasonable amount of time has passed, so you may need to invoke your right to remain silent every 24 hours.

[xoa]

desdiv's document is a great read. If you're referring to Miranda specifically though, I think a key part there might be "If you are not in custody[...]". The Miranda v. Arizona 1966 SCOTUS ruling had to do with violation of 5th/6th Amendment rights against compelled testimony and right to counsel. If you are arrested and interrogated, obviously you are under the government's direct power by definition, and if law enforcement fails to make clear to those arrested that testimony is not something they can actually coerce then anything they gain might get tossed on constitutional grounds. It's as much for the protection of prosecution as anything actually.

But nothing in the Constitution prevents you from volunteering whatever the heck you want to anyone, including someone from the government, even if it would a completely stupid decision to do so. If an agent/officer just asks you a question that doesn't mean you're in custody. They can legally draw inferences from any of your resulting answers/non-answers, just as they could from 3rd party witnesses, though how well any of those hold up in court is a different question of course. Affirmative assertion of rights is the neutral course there, it doesn't mean anything except that you recognize the situation is serious and want counsel to help you navigate it. It's not an admission of anything, it puts things on hold.

[rocqua]

I recall a supreme court case where a suspect during an interview where in general he was talking, remained silent uppon being asked a (rather pertinent) question. This silence was brought as evidence.

The case before the court was that his silence was protected under the 5th, and thus could not be brought as evidence. It was ruled that, since he was already talking to police, and did not positively assert his 5th amendment right the 5th did not apply.

All of this is based solely on my recollection.

[desdiv]

This document explains it:

http://www.cardozolawreview.com/content/36-1/RUBER.36.1.pdf

[erikb]

You probably have the right to be silent. But at the same time you also have to comply with commands from officers, and if your silence makes problems to them it may also be a crime in itself.

Not sure if this applies (not a lawyer, not even in the US) but usually in that kind of situation you have protection in one direction but then they can just apply pressure from another.