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For one reason or another, a police officer has just asked you a question, and you've wisely decided not to provide any response that could be used against you in court. What can you say or do that will not be used against you?

It's often thought that "you have the right to remain silent," and so if you simply refuse to answer the question, then your refusal to answer can't be brought as evidence against you. But as mentioned in this answer discussing Salinas v. Texas, there are some circumstances under which a refusal to answer a question from the police can be used as evidence against you.

If you simply say "I want a lawyer," is that a response that can't be used against you? How about "I'm invoking my right to silence"? Or do you need to say something longer and more explicit, like "I invoke my rights under the Fifth and Sixth Amendments"?

My question is similar to this other question, but not exactly the same. That question is asking what response people can make to "avoid talking to the police and mistakenly incriminating themselves"; I'm specifically asking what response you could make that could not be used as evidence against you in court. I don't think the posted answers on that question clearly answer my question (especially since the top-rated answer seems to be contradicted by the Salinas v. Texas decision).

This question is primarily about the United States, but as always, answers related to other jurisdictions are welcome.

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    I'd presume that the "anything you say can be used against you" in the Miranda warning literally does mean "anything". So if you say "I want a lawyer", presumably the arresting officer can testify that "the defendant said that he wanted a lawyer". But of course, just because the prosecution can use your statement as evidence, doesn't mean it will actually be useful to their case. Mar 26, 2023 at 2:04
  • AFAIK, an invocation of rights is not admissible in the US as evidence against the defendant.
    – user6726
    Apr 1, 2023 at 14:52
  • In the Salinas case it wasn’t a general refusal to answer questions that got him, but the reaction and abrupt change in demeanor when a particularly incriminating question was posed. Apr 1, 2023 at 16:35

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This may not be the answer that you're looking for, but my mother always told me the best way to take control of a conversation is to ask a question.

Am I under investigation? Did you just try and interrogate me without reading me my Miranda Rights? I'm not contracted with your organization, so what are your intentions?

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    – Community Bot
    Apr 1, 2023 at 14:56
  • Are you saying that a question like "what are your intentions?" can't be used as evidence against you? Apr 1, 2023 at 15:17
  • @TannerSwett, evidence of what? Apr 1, 2023 at 15:20
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A person need not say anything. See R. v. Turcotte, 2005 SCC 50 at paras. 55-56:

... Conduct after a crime has been committed is only admissible as “post-offence conduct” when it provides circumstantial evidence of guilt. The necessary relevance is lost if there is no connection between the conduct and guilt. The law imposes no duty to speak to or cooperate with the police. This fact alone severs any link between silence and guilt. Silence in the face of police questioning will, therefore, rarely be admissible as post-offence conduct because it is rarely probative of guilt [see paras. 48-50 for such examples]. Refusing to do what one has a right to refuse to do reveals nothing. An inference of guilt cannot logically or morally emerge from the exercise of a protected right. Using silence as evidence of guilt artificially creates a duty, despite a right to the contrary, to answer all police questions.

Since there was no duty on Mr. Turcotte’s part to speak to the police, his failure to do so was irrelevant; because it was irrelevant, no rational conclusion about guilt or innocence can be drawn from it; and because it was not probative of guilt, it could not be characterized for the jury as “post-offence conduct".

See also R. v. Powell, 2021 ONCA 271 at para. 63, quoting Turcotte:

It is without a doubt that an accused has a constitutional right to remain silent during any part of a police interview. This right remains intact even if the accused opts to speak to police about certain matters... An individual can provide some, none, or all of the information he or she has. A voluntary interaction with the police, even one initiated by an individual, does not constitute a waiver of the right to silence. The right to choose whether to speak is retained throughout the interaction.

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