We all know the phrase from movies and television:

“You have the right to remain silent.”

It’s one of the most recognizable lines in American law — a bedrock of the Fifth Amendment and the Miranda warning. Most people assume it means exactly what it says: if you stay silent, your silence can’t be used against you.

But in reality, that assumption could cost you dearly.
Because according to the Supreme Court, you don’t automatically invoke your right to remain silent simply by staying quiet.

You have to say something to exercise your right not to speak.

The Case That Changed Everything: Salinas v. Texas (2013)

In 2013, the U.S. Supreme Court decided Salinas v. Texas, a case that reshaped what “remaining silent” really means.

Genovevo Salinas voluntarily went to the police station for questioning about a murder. He was not under arrest and had not been read his Miranda rights. He freely answered some questions until the police asked whether his shotgun would match shells found at the crime scene.

At that moment, he fell silent. He didn’t say “yes,” “no,” or anything at all.

During the trial, prosecutors told the jury that his silence was suspicious and that an innocent person would have denied involvement. Salinas was convicted, and the Supreme Court upheld the conviction, ruling that because he did not expressly invoke his Fifth Amendment right, his silence could be used as evidence against him.

The Paradox of Silence

The Fifth Amendment protects individuals from being compelled to incriminate themselves. But Salinas clarified that this protection is not automatic.
If you want the shield of the Fifth Amendment, you have to clearly claim it.

In other words, to exercise your right to remain silent, you must actually speak up and say something like:

“I’m invoking my Fifth Amendment right to remain silent.”

Otherwise, your quiet pause, hesitation, or refusal to answer can be interpreted, and presented to a jury, as a sign of guilt.

Why This Matters

The Salinas decision creates a difficult paradox for the average person: to remain silent safely, you must first declare your intent to remain silent. It’s a subtle but crucial distinction that most people, even law-abiding citizens, don’t know.

Police officers are not required to warn you about this if you’re not under arrest, and without a Miranda warning, your statements (or your silence) can be used against you in court.

This means that in a voluntary conversation with law enforcement, silence is not necessarily your friend.

If you want to rely on the Fifth Amendment, you must affirmatively assert it.

Practicalities

State your right clearly.
If you choose not to answer questions, say explicitly: “I am invoking my Fifth Amendment right and wish to remain silent.”
Stop talking afterward.
Once you invoke the right, do not continue answering questions. Doing so may be interpreted as waiving it.
Ask for an attorney.
You can always add: “I want to speak with an attorney before answering any questions.”
Know when Miranda applies.
Miranda warnings only apply once you are in custody. Before that, there is no obligation for police to inform you of your rights.

FINALE

The right to remain silent is one of the most fundamental protections in American law, but it’s not self-executing.
If you want its protection, you must claim it clearly and intentionally.

Salinas v. Texas serves as a powerful reminder that rights only protect those who know how to assert them.