Editing Right to silence (section)

===United States===
{{Main|Fifth Amendment to the United States Constitution}}
{{Further|Miranda warning}}
The [[Fifth Amendment to the United States Constitution]] provides that no person shall be compelled in any criminal case to be a witness against themself.<ref>{{cite web|title=The Bill of Rights: A Transcription|url=https://www.archives.gov/founding-docs/bill-of-rights-transcript|website=America's Founding Documents|date=4 November 2015 |publisher=National Archive|access-date=17 September 2017}}</ref> At trial, the prosecution can neither call the defendant as a witness, nor comment on the defendant's failure to testify.<ref>''Griffin v. California'', 380 U.S. 609 (1965).</ref> Whether to testify or not is exclusively the privilege of the defendant,<ref>{{cite journal|last1=Tague|first1=Peter W.|title=The Fifth Amendment: If an Aid to the Guilty Defendant, an Impediment to the Innocent One|journal=Georgetown Law Journal |date=1989 |volume=78 |pages=1–70 |url=http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1701&context=facpub|access-date=17 September 2017}}</ref><ref>''Harris v. N.Y.'', 401 U.S. 222, 225 (1971).</ref> although defendants were originally not allowed to testify on their own behalf at all.<ref name="silencepenalty">{{Cite journal |last=Bellin |first=Jeffrey |title=The Silence Penalty |url=https://ilr.law.uiowa.edu/print/volume-103-issue-2/the-silence-penalty/ |journal=Iowa Law Review}}</ref> An 1864 appropriations act allowed defendants to do so while removing race restrictions,<ref>{{Cite web |url=http://legisworks.org/congress/38/session-1/chap-210.pdf |title=Statutes at Large Volume 13 (1863-1865): 38th Congress |website=Legisworks |page=351|url-status=usurped |archive-url=https://web.archive.org/web/20151017100838/http://legisworks.org/congress/38/session-1/chap-210.pdf|archive-date=17 October 2015}}</ref> and the 1987 [[Supreme Court of the United States|Supreme Court]] case ''[[Rock v. Arkansas]]'' established a constitutional "right to take the witness stand."<ref name="silencepenalty"/>

Outside the context of lawful detention or arrest, a person has no duty to answer any questions of the police.<ref>{{cite web|title=Your Rights if Questioned, Stopped or Arrested by the Police|url=https://www.ohiobar.org/ForPublic/Resources/LawFactsPamphlets/Pages/LawFactsPamphlet-21.aspx|website=Ohio State Bar|access-date=17 September 2017|date=23 February 2015}}</ref> A witness or litigant may assert a Fifth Amendment right to silence in civil litigation, although there are potential consequences to litigants who exercise that right.<ref>{{cite journal |last1=Tubach |first1=Michael |last2=Pletcher |first2=Anna |last3=Parikh |first3=Trisha |title=When Silence Is Not Golden: Real World Implications of Non-Parties "Taking the Fifth" in Civil Proceedings |journal=Antitrust |date=2020 |volume=35 |page=82}}</ref> Only if granted immunity by the state, in a formal proceeding, from having any testimony or evidence derived from the testimony used against them, can a person be compelled to answer over an assertion of this right.<ref>''[[Kastigar v. United States]]'', 406 U.S. 441, 462 (1972).</ref><ref>{{cite news|last1=Henning|first1=Peter J.|title=Fifth Amendment Makes it Hard to Build a Case Against Flynn|url=https://www.nytimes.com/2017/05/23/business/dealbook/fifth-amendment-makes-it-hard-to-build-a-case-against-flynn.html|access-date=17 September 2017|newspaper=The New York Times|date=23 May 2017}}</ref> If police detain (or arrest) a person, they must advise them that they have a right to remain silent, and the right to an attorney, among other rights. (This is known as the [[Miranda warning|''Miranda'' warning]].) If the detained person invokes these rights, all interrogation must cease, and ordinarily nothing said by the defendant in violation of this rule may be admitted against them at trial.<ref>''[[Miranda v. Arizona]]'', 384 US 436, 448–50, 455 (1966).</ref><ref>{{cite journal|last1=Joest|first1=D.|title=The Impeachment Exception: Decline of the Exclusionary Rule|journal=Indiana Law Review |date=1974 |volume=8 |page=865 |url=https://journals.iupui.edu/index.php/inlawrev/article/viewFile/2161/2046|access-date=17 September 2017}}</ref>

The form of the Miranda warning varies based on jurisdiction, but it usually follows this pattern: 
<blockquote> You have the right to remain silent. Anything you say can be used against you in a court of law. You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future. If you cannot afford an attorney, one will be appointed for you before any questioning if you wish. If you decide to answer questions now without an attorney present, you have the right to stop answering at any time. Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney present? </blockquote>

On 17 June 2013, the U.S. Supreme Court ruled in ''[[Salinas v. Texas]]'' that, prior to being arrested, an individual must specifically invoke the Fifth Amendment right to "remain silent", otherwise selective silence can be used against him or her in court.<ref>{{cite web|title=Salinas v. Texas, 133 S. Ct. 2174, 186 L. Ed. 2d 376 (2013)|url=https://scholar.google.com/scholar_case?case=15276354638064615661|website=Google Scholar|access-date=17 September 2017}}</ref>

====Uniform Code of Military Justice====
Members of the [[United States Armed Forces]] are covered by the [[Uniform Code of Military Justice]] (UCMJ). Under the UCMJ, sworn military personnel, whether of enlisted, warrant or commissioned rank, have a right to remain silent that was established 16 years before the ''Miranda v. Arizona'' ruling.<ref name=autogenerated1>{{cite web |url=http://usmilitary.about.com/od/justicelawlegislation/l/aa31rights.htm |title=Military Justice 101 – Part 5, Right to Remain Silent (Article 31 Rights) |publisher=Usmilitary.about.com |date=19 June 2010 |access-date=2011-12-21 |archive-date=4 March 2016 |archive-url=https://web.archive.org/web/20160304115523/http://usmilitary.about.com/od/justicelawlegislation/l/aa31rights.htm |url-status=dead }}</ref> There are significant protections against coercive self incrimination in Article 31, UCMJ,<ref>{{cite web |url=http://usmilitary.about.com/library/milinfo/ucmj/blart-31.htm |title=Uniform Code of Military Justice (UCMJ) – ART. 31. COMPULSORY SELF-INCRIMINATION PROHIBITED |publisher=Usmilitary.about.com |date=19 June 2010 |access-date=2011-12-21 |archive-date=4 March 2016 |archive-url=https://web.archive.org/web/20160304063507/http://usmilitary.about.com/library/milinfo/ucmj/blart-31.htm |url-status=dead }}</ref> but it does differ somewhat from the ''Miranda'' warning, and in essence provides greater protections.<ref name=autogenerated1 />{{how|date=February 2022}} This is one difference between civilian and military justice in the United States, and many other nations have similar corollary rules regarding military justice vs. civilian justice.<ref>Military Judicial Rules of Procedure, Uniform Code of Military Justice – 1951 as amended</ref>