Everyone has heard the phrase. Fewer people know where it comes from, what it actually covers, or how to use it. Brian Foley explains in this video.
The sources
The Fifth Amendment — no person "shall be compelled in any criminal case to be a witness against himself." Article I, § 10 of the Texas Constitution — the accused "shall not be compelled to give evidence against himself." Code of Criminal Procedure Art. 38.08 — a defendant's failure to testify "shall not be taken as a circumstance against him," and the prosecutor may not comment on it. Texas also requires, under Art. 38.22, that custodial statements be preceded by warnings and recorded to be admissible.
What it covers
Answers to questions. You do not have to say where you were, what you did, what you drank, or whether you know the complainant. You do not have to explain, deny, or confirm. This applies before arrest, during arrest, and after.
What it does not cover
Your identity. If you are lawfully arrested, Texas Penal Code § 38.02 requires you to give your name, address, and date of birth. As a driver, you must produce your license. Physical evidence — fingerprints, a breath or blood sample under a warrant, standing in a lineup — is not "testimony" and is not protected by the right.
How to invoke it
Silence alone is ambiguous, and courts have allowed prosecutors to comment on pre-arrest silence that was never claimed as a right. Say it: "I am invoking my right to remain silent and I want a lawyer." Once you unambiguously ask for a lawyer, questioning must stop and cannot resume without counsel present. Then actually remain silent — answering "just one question" reopens the door.
At trial
If you do not testify, the judge instructs the jury that they may not consider it, and the prosecutor may not mention it. If you invoked the right during questioning, that invocation is likewise not admissible. The right only works if you use it. Brian Foley and Luis Baez prosecuted the cases where people did not. Call or text (713) 703-1718.