Refusing to make a statement after an arrest: what consequences it really has
When someone is arrested and taken to make a statement, the pressure to talk is enormous: the officers may convey that cooperating is in your interest, relatives may ask you to tell the truth and get it over with, and the detainee themselves feels the urge to explain. Precisely at that moment, with pressure at its maximum and mental clarity at its minimum, it is worth knowing with certainty a fundamental right: the right to remain silent.
This right, recognised in Article 17.3 of the Constitution, stems from the principle that no one can be compelled to assist in their own incrimination. It takes the form of several rights: to remain completely silent, not to incriminate oneself, not to confess guilt and to have silence not interpreted as an indication of guilt. They are inalienable in the abstract, although each person may decide not to use them; the decision to make a statement or not is always the detainee's, but it must be taken with information and advice, not under the pressure of the moment.
What happens when you refuse to make a statement to the police? Simply, the questioning ends. The police cannot keep pressuring or interpret the refusal as proof of anything. The detainee remains in custody until the end of the period or until being brought before the court: silence neither shortens nor lengthens the detention. It may be noted in the police report that the detainee exercised their right to silence, but that fact has no evidentiary value against them.
Before the judge the situation is legally identical, with two nuances. The first is that a statement before the judge has greater evidentiary value than one before the police. The second is that partial silence is possible: the person under investigation may answer their lawyer's questions and refuse those of the prosecutor, one of the most important strategic tools of the defence.
Can silence be prejudicial? The rule is clear: the court cannot assess silence as proof of guilt, since doing so would infringe the presumption of innocence. There is a nuance recognised by European case law, according to which, when there is solid incriminating evidence that would clearly call for an explanation, silence may marginally reinforce that assessment, but this doctrine is very limited in Spain and silence can never be the main basis for a conviction.
Remaining silent is usually the most intelligent course when the accusation is not known precisely, when any explanation may be misinterpreted, when the statement may open new lines of investigation or when the prosecution's evidence is weak. By contrast, making a statement may be advisable when one has a solid and verifiable alibi that can lead to dismissal of the case, when certain evidence can be contextualised through one's own account, or when cooperating may serve as a mitigating factor or open a favourable plea agreement.
The decision is too important to be taken without a lawyer: it depends on the strength of the evidence, the state of the investigation and the detainee's personal situation. Before any statement, a private and confidential interview with the lawyer must take place to analyse the situation and agree on the strategy. If that interview has not taken place, the detainee should refuse to make a statement until they can have it.
