Whether the Fifth Amendment prohibits the prosecution from commenting at trial on a defendant’s silence when questioned by the police prior to Miranda warnings.

The Supreme Court has held that the right to remain silent means that the prosecution may not comment on a defendant's failure to take the witness stand, or to answer questions after Miranda warnings have been administered. The question in this case is whether the same rule should apply when a suspect refuses to answer police questions prior to receiving the Miranda warnings. The ACLU amicus brief argues that the answer to that question is yes, both to protect the fundamental Fifth Amendment right against self-incrimination and to discourage the police from manipulating the timing of the Miranda warnings.

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