The Right to Remain Silent at Trial in Minnesota

You Don't Have to Testify

A defendant has an absolute right not to take the witness stand, and a Minnesota statute provides that your failure to testify cannot be commented on by the prosecutor or the court. On your request, the judge must instruct the jury that they may not draw any inference from your decision not to testify. (That instruction must be requested by you personally, not just by your lawyer.)

What this means for you: Choosing not to testify is your right, and the jury is not supposed to hold it against you. Whether to testify is a major strategic decision to make with your lawyer.

Can the Prosecutor Comment on My Silence?

This depends heavily on when you were silent and whether you testify. The general guidelines:

• Post-Miranda silence: The prosecution generally cannot use your silence after receiving Miranda warnings to impeach you — because the warnings implicitly assure you that your silence won't be used against you.
• Pre-arrest silence (if you testify): The prosecution may use your pre-arrest silence to impeach your credibility if you take the stand and police did nothing to induce your silence.
• Pre-arrest silence (if you don't testify): Under Salinas v. Texas, if you were not in custody, had not been warned, and simply stayed silent without expressly invoking the Fifth Amendment, that silence can potentially be used against you — because there's no unqualified right to silence in a voluntary interview unless you invoke it.
• Silence on advice of counsel while in custody generally cannot be used, even for impeachment.

If You Do Testify

Once you choose to testify, you generally open yourself to cross-examination, and the rules change. For example, if you voluntarily spoke to police after Miranda warnings, the prosecution can question you about prior inconsistent statements — that's not treated as commenting on your silence, because you didn't stay silent. The decision to testify therefore carries real consequences and should be made carefully.

Who Can Assert the Privilege?

The Fifth Amendment privilege isn't limited to the defendant at trial. In general:

• Witnesses can assert it to avoid giving answers that might incriminate them — there must be a real, rational basis for believing the answer could be incriminating.
• It can apply in some civil proceedings that are "criminal in nature" or where answers could expose someone to criminal liability.
• A party generally cannot call a witness just to make them invoke the privilege in front of the jury.

Immunity

Sometimes the government can compel testimony by granting immunity — if your testimony (and evidence derived from it) can't be used against you, the privilege no longer applies because you're protected from the incrimination it guards against.

Being Forced to Provide Physical Evidence

The privilege protects against compelled testimonial communication — not physical evidence. So you can generally be required to provide fingerprints, stand in a lineup, give handwriting or voice samples, or submit to certain other identification procedures, because those use your physical characteristics rather than forcing you to testify against yourself. (See our page on identification evidence.)

Other Related Protections

• Right to an interpreter for those who need one to understand the proceedings.
• Rights of foreign nationals, including consular notification considerations.
• Editing of confessions to remove inadmissible material before anything is shown to a jury.

Key Terms

• Privilege against self-incrimination: The Fifth Amendment right not to be compelled to be a witness against yourself.
• Comment on silence: A prosecutor or judge drawing attention to a defendant's silence — restricted, with exceptions.
• Impeachment: Using prior statements or silence to attack a testifying witness's credibility.
• Immunity: A grant that protects testimony from use, removing the basis for the privilege.