Your Right to Remain Silent in Massachusetts

The Fifth Amendment, Article 12, Miranda Rights, and the Phone Passcode Question

Under the Fifth Amendment to the United States Constitution and Article 12 of the Massachusetts Declaration of Rights, no person shall be compelled to be a witness against themselves in a criminal case. This right — the right to remain silent — is the single most important constitutional protection available to a person who is being questioned by police, detained at a traffic stop, or arrested. Any statement made to police — a denial, an explanation, an apology, an attempt to “clear things up” — is admissible against the defendant at trial and can be used to establish intent, to impeach credibility, or to provide the probable cause needed for a subsequent search or arrest.

The right to remain silent must be invoked explicitly. Silence alone — without an explicit invocation — does not trigger the right’s protections under Berghuis v. Thompkins (560 U.S. 370, 2010). The correct invocation is clear and unambiguous: “I am invoking my right to remain silent. I want to speak with a lawyer.” Nothing further should be said. See: What to Do in the First 24 Hours After a Massachusetts Arrest.

Article 12: Massachusetts Provides Broader Protection Than the Federal Standard

Massachusetts Article 12 of the Declaration of Rights provides broader protection than the federal Fifth Amendment in two significant respects that every Massachusetts defendant should understand.

First, under Commonwealth v. Bouchett (407 Mass. 408, 1990) and its progeny, a Massachusetts prosecutor cannot comment on a defendant’s pre-arrest silence — even silence before Miranda warnings are given — as evidence of guilt. Under the federal standard established in Jenkins v. Anderson (447 U.S. 231, 1980), pre-arrest silence can in some circumstances be used for impeachment at trial. Massachusetts rejects this approach. If a defendant said nothing to police at the scene of an incident before any arrest occurred, the prosecution cannot argue to the jury that the defendant’s silence implies consciousness of guilt. Pre-arrest silence is constitutionally protected in Massachusetts and cannot be used against the defendant in any form.

Second, Article 12 provides that no person shall be compelled to “accuse or furnish evidence against himself.” The Massachusetts SJC has interpreted this clause to provide protections in certain contexts — including some document production scenarios — where the federal Fifth Amendment provides no protection. When federal and Massachusetts constitutional standards diverge, defense counsel can argue the broader Article 12 protection independently of the federal claim. The Article 12 argument is preserved separately from the Fifth Amendment argument and must be raised explicitly to be preserved for appeal.

Miranda Rights in Massachusetts

The Miranda warnings — “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney…” — are required before a custodial interrogation. A custodial interrogation is questioning that occurs when a reasonable person in the defendant’s position would not feel free to leave — which includes formal arrest but also, in some circumstances, questioning at the scene of an investigation, in the back of a police cruiser, or in an interrogation room at a police station even before formal arrest.

A Miranda violation does not automatically result in dismissal of the underlying charge. It results in suppression of the statements made during the un-Mirandized interrogation through a Motion to Suppress. The underlying charge remains, but the Commonwealth cannot use those statements at trial. When the suppressed statements are the key evidence — a confession, an admission of prior knowledge, a statement placing the defendant at the scene — their suppression can significantly weaken or eliminate the prosecution’s case.

Massachusetts applies a more protective standard for determining what constitutes “custody” in some circumstances than the federal standard articulated in Berkemer v. McCarty (468 U.S. 420, 1984). Massachusetts courts focus on the totality of circumstances from the defendant’s perspective — the number of officers present, whether the defendant was restrained or separated from companions, the nature and tone of the questioning, and whether the defendant was told they were free to leave. A defendant who is not formally arrested but is effectively held at the scene by multiple officers and subjected to focused accusatory questioning may be in “custody” for Miranda purposes under Massachusetts law even if no formal arrest has occurred.

What Police Can and Cannot Ask Without Miranda Warnings

Not every police question requires Miranda warnings. Police can request your name, driver’s license, vehicle registration, and proof of insurance during a traffic stop without issuing Miranda warnings — this is not interrogation in the Fifth Amendment sense. Police can also ask routine booking questions — name, address, date of birth, occupation — after a lawful arrest without triggering Miranda.

What police cannot do without Miranda warnings in a custodial context is interrogate you about the alleged offense. “Where were you coming from?” “How much have you had to drink?” “Whose drugs are these?” “Did you know there was a warrant for your arrest?” — these are interrogation questions. You are not required to answer them. You are not required to explain yourself. You are not required to provide an alibi, a timeline, or an account of your activities. The most common self-incriminating statements in OUI cases, drug cases, and domestic violence investigations are made voluntarily at the scene before any formal arrest — before Miranda warnings are even required.

The Right to Remain Silent at a Traffic Stop

During a Massachusetts traffic stop, you are required to provide your name, driver’s license, vehicle registration, and proof of insurance under M.G.L. c. 90, § 25. You are not required to answer any other questions. The most common self-incriminating statements in OUI cases are made voluntarily at traffic stops before any arrest: “I only had two beers,” “I’m coming from a bar in Cambridge,” “I took some Xanax earlier.” Each of these statements is admissible at trial. None of them are required.

Under the Bouchett standard, your silence at the traffic stop — before any arrest, before any Miranda warnings — is constitutionally protected and cannot be used as evidence of guilt at trial in Massachusetts. The correct response to all investigative questions beyond the mandatory documentation request is: “I’d prefer not to answer any questions without speaking to an attorney first.”

The Right to Remain Silent After Arrest

After an arrest, the right to remain silent continues throughout the booking process, any interrogation, and all subsequent questioning. Under Edwards v. Arizona (451 U.S. 477, 1981) — adopted in Massachusetts — once a defendant has invoked the right to counsel, all police-initiated interrogation must cease until counsel is present. Any statement obtained after an unambiguous invocation of the right to counsel is suppressible through a Motion to Suppress regardless of whether the defendant subsequently appeared to speak voluntarily.

Common scenarios where defendants inadvertently waive their right to silence after invocation: accepting a phone call from the alleged victim while in custody and making recorded statements; speaking to a cellmate or detainee who is a police informant; making statements to a family member during a jail phone call — jail calls are recorded and recorded statements are fully admissible at trial. The invocation of the right to remain silent and the right to counsel does not end when police stop asking questions in the interrogation room. It must be maintained throughout every interaction during custody.

The Right Not to Testify at Trial: No Adverse Inference

A defendant in a Massachusetts criminal trial has the absolute right not to testify. Under the Fifth Amendment and Article 12, the prosecution cannot call the defendant as a witness, cannot comment on the defendant’s failure to testify, and cannot argue to the jury that the defendant’s silence at trial implies guilt. The jury must be instructed, upon request by defense counsel, that the defendant’s decision not to testify cannot be considered as evidence of guilt in any way.

This protection is broader in Massachusetts than in most other contexts. The SJC has held that even indirect comment on a defendant’s silence — a prosecutor’s remark that the only evidence the jury heard came from the Commonwealth’s witnesses, or a statement that no one contradicted the officer’s testimony — can constitute an impermissible comment on the defendant’s failure to testify. Defense counsel must object immediately and move for a mistrial or curative instruction when this occurs.

The Phone Passcode: A Separate Fifth Amendment Question

When police seize a smartphone or digital device, they frequently demand the passcode. Providing the passcode is fundamentally different from providing your name — it is an act that compels you to produce testimonial evidence against yourself.

Under the Fifth Amendment’s act-of-production doctrine, as applied in Massachusetts under Commonwealth v. Gelfgatt (11 N.E.3d 605, 2014) and Commonwealth v. Jones, providing a passcode to unlock a device is a testimonial act — it communicates the defendant’s knowledge of the passcode and their control over the device’s contents. Unless the government can establish under the “foregone conclusion” doctrine that it already independently knows the passcode and the specific files it will find, the Fifth Amendment protects against compelled disclosure. The foregone conclusion doctrine is narrow: the government must demonstrate with reasonable particularity that it knows the passcode exists, that the defendant knows it, and that the specific files sought are on the device.

The practical instruction: do not provide your passcode under any circumstances. Do not unlock the phone for police. Do not provide a fingerprint or face scan to unlock it — biometric unlocking presents different and still-evolving constitutional questions under Massachusetts law, and the safest course is to decline. See: Your Fifth Amendment Right to Refuse a Passcode in Massachusetts and Digital Search Warrants in Massachusetts: What Police Must Prove.

The Right to Remain Silent in Non-Custodial Settings

The Fifth Amendment and Article 12 right against self-incrimination applies beyond custodial police questioning:

• Licensing board inquiries — a physician questioned by BORIM, an attorney questioned by the BBO, or a financial advisor questioned by FINRA is not required to provide self-incriminating statements. The Fifth Amendment applies to administrative proceedings with quasi-criminal consequences. See: Criminal Defense for Licensed Professionals in Massachusetts
• University disciplinary proceedings — a student questioned by a Dean of Students or Title IX investigator may invoke the Fifth Amendment if the underlying conduct is also the subject of a criminal investigation. Statements made to university officials can be subpoenaed and used in the criminal case
• Civil depositions — a civil defendant may assert the Fifth Amendment in a deposition if truthful answers would tend to incriminate them in a pending or reasonably anticipated criminal matter
• Grand jury testimony — a grand jury witness can invoke the Fifth Amendment privilege against self-incrimination on a question-by-question basis. See: Massachusetts Grand Jury Indictments

What to Say to Police — and What Not to Say

The only correct response to police questioning beyond mandatory documentation requirements is a clear, calm invocation of the right to remain silent and the right to counsel:

“I am invoking my right to remain silent. I want to speak with a lawyer before answering any questions.”

Make this statement once, clearly, and do not repeat or elaborate. Do not argue with the officer. Do not explain why you are invoking your rights. Do not attempt to convince the officer of your innocence. Do not answer “just one more question.” Do not make any statement to anyone in custody — fellow detainees, family members on a recorded jail call, or university officials — before speaking with a defense attorney. Every word spoken to police or any government agent in a criminal investigation is a potential exhibit at trial.

Under the Bouchett standard, your silence — before arrest, during custody, and at trial — is constitutionally protected in Massachusetts and cannot be used against you as evidence of guilt. That protection is only as strong as your willingness to exercise it.

See also: Illegal Searches and Seizures in Massachusetts, Your Fifth Amendment Right to Refuse a Passcode in Massachusetts, Digital Search Warrants in Massachusetts, and What to Do in the First 24 Hours After a Massachusetts Arrest.

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