Miranda rights say you have the right to remain silent and that anything you say can be used against you. My question is, can the exercise of this right be used against you at a trial? It seems that at the Rittenhouse trial the prosecutor called into question why the accused remained silent. This seemed like a clear violation of the defendant's constitutional rights.

  • Criminal or Civil case?
    – Trish
    Nov 28, 2021 at 13:24
  • Is the answer different depending on the two?
    – Neil Meyer
    Nov 28, 2021 at 15:11
  • 1
    @Trish the example in the question is a criminal trial.
    – phoog
    Nov 28, 2021 at 15:19
  • @NeilMeyer Yes, the answer is different, especially since you can't plead the 5th in a civil case.
    – Trish
    Nov 28, 2021 at 15:27
  • I'm interested in the particular of this in a criminal trial.
    – Neil Meyer
    Nov 28, 2021 at 15:28

1 Answer 1


Your silence can be used against you: this is known as an adoptive admission. It is an exception to the hearsay rule, and is based on the premise that if a person hears and understands an accusation against them (even framed very indirectly), and "adopts" the truth of the accusation by directly acting in a certain way or by failing to dispute the accusation, this can be introduced as a form of admitting to the accusation. For instance, B might say to A "I laughed when you shot Smith in the foot" and A might say "That was pretty funny, right", that can be admitted and interpreted as a confession. The same goes for A saying nothing. What's crucial is that the accusation has to be made in the defendant's presence, they must hear and understand it, they must be able to deny the accusation and it would be natural to deny the accusation.

There is a relationship between this and the Fifth Amendment, see Salinas v. Texas (and prior law), that "To prevent the privilege against self-incrimination from shielding information not properly within its scope, a witness who “‘desires the protection of the privilege . . . must claim it’". During a non-custodial interview, defendant was asked asked if his shotgun “would match the shells recovered at the scene of the murder”, and he said nothing (and actually gave non-verbal indicators that the accusation was true). He did not invoke his right to silence, thus the court reasoned that "Because he failed to do so, the prosecution’s use of his noncustodial silence did not violate the Fifth Amendment".

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .