The Right to Remain Silent

by George Heitczman

A Most Precious Right

One of the most precious rights enshrined in the United States Constitution is the right to remain silent.  This protection was inserted by our founding fathers who were well aware of brutal interrogation methods used in the past.

The Fifth Amendment states: “nor shall any person be compelled in any criminal case to be a witness against himself.”

This right is available to all citizens, innocent or guilty.  If the government wishes to prosecute one of its citizens it must do the hard work of gathering the evidence, not squeeze the defendant until he confesses.

This protection makes the work of the police and prosecutors more difficult.  That is why it is there.  During the British Raj in India, it was sometimes said, why go about in the hot sun gathering evidence when it is easier to sit in the shade rubbing pepper in some poor devil’s eyes.

Rubbing pepper in someone’s eyes is not a practice currently followed, but government agents are often specially trained in interrogation methods which can be the psychological equivalent.

Hot sun or not, inconvenient or not, the government must do its own work.

Don’t only guilty people take the 5th?

The right is equally available to innocent people and perhaps more valuable.  Until a person has had the advice of a lawyer and knows what the object of the government’s investigation is, it is unwise to say anything.

Remaining silent also ensures that any mistakes or misstatements you may make are not deemed to be lies and used against you.  Recall that Martha Stewart went to jail not for stock manipulation, but for lying about it.

If any government agent reads you your rights, it is important to exercise those rights.  It is also important to know that these rights are only read to you if you are in custody.  If the police ask you to stop by and you do so, you are not in custody, and anything you say can and will be used against you.

If you have an encounter with the police, it is necessary to expressly invoke your Fifth Amendment right.  In a 2013, United States Supreme Court case, the Court required that you must specifically refer to the Fifth Amendment such as by stating, I am not answering any questions on Fifth Amendment grounds.

Merely failing to answer questions does not invoke your Fifth Amendment right, and the police can continue to ask questions and use your answers against you unless you properly invoke your constitutional right.

There are two questions that are often asked that sound similar but are very different.
The first is: do I have to speak to the police.  The answer to this is no, you must identify yourself, and you should always be civil and courteous, but you do not have to answer any other questions.

The second question is: should I speak to the police?  This can be a difficult and complicated decision requiring the advice of counsel.  If in fact, you have done something that perhaps you should not have done, a lawyer can determine the best way to deal with this, and also can get in touch with the prosecuting attorney to reach an agreement before any statement is made.  The police cannot make a promise that binds the government; only a prosecuting attorney can do so.

The situation is compounded because it is perfectly legal for the police to lie to you in an attempt to obtain a statement.  It is called investigative technique.  However, if you lie to the police, that in itself can be a crime.

The advice to remain silent is easy to give but often difficult for people to accept.  Many people feel that if they are innocent, they have nothing to hide, and others feel that, surely, they can explain their situation in such a way as to satisfy the police.  This is always unwise.

The police do not attempt to question anyone without some basis or reason to think that useful information might be provided.  Someone once said that there are no deaf and dumb people in jail.

In an attempt to hammer home the simple advice to remain silent, I have a mounted fish in my office under which appears the statement: If I had kept my big mouth shut, I would not be here.

This advice is not new.  In 1949 United States Supreme Court Justice Jackson stated in an opinion:

“To subject one without counsel to questioning which may and is intended to convict him is a real peril to individual freedom … any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances.”

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