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Continuation of 5th Amendment

Picking up where we left off at the end of last year, let's continue our exploration of your rights under the 5th Amendment to the Constitution of the United States.

The Amendment, as noted previously, merely states that no person may be compelled to be a witness against themself. Without turning this into a Constitutional Law class, it is important to understand when this right attaches and when your rights should be given to you in the well-known Miranda warning. This is an area which most fiction script writers get it wrong. There is no requirement for a person to be given the Miranda Warning by virtue of having been arrested. On the other hand, a person not arrested but in a custodial interrogation (police now use the term interview) situation should be given the Miranda Warning.

It is worth mentioning that not every law enforcement contact requires that you exercise this right. But, you should always be continuously evaluating whether or not it should be invoked. You should always remember that you are dealing with a skilled interrogator. (This is not a pejorative term, an interrogator is one who asks questions.) I have often advocated that people understand the situation in which they are thrust when deciding what is the best course to follow. It is a fact, that one cannot cooperate themself out of trouble, as a general rule. A serious investigation warrants the hiring of your own advocate, experienced in the ways of the system and capable protecting your rights. The "right to remain silent" is not limited to the "guilty" it is a right for all persons in this country.

I have done presentations, for example, on what to do after a shooting incident. The scenario is one in which the person has a legal possession of the firearm and is confronted with a situation in which the use of that firearm is reasonable. I note that most law enforcement agencies have a 48 hour rule, which precludes any agent, officer or deputy from being interviewed by other law enforcement for a period of 48 hours after a shooting. There are many reasons for this, the first being the trauma of having gone through this event and its effect on our mind and reflections. Exercising the right in this context is completely reasonable and proper. In a goose/gander analogy, I say if it is good enough for law enforcement it is good enough for citizens.

When someone does decide to speak with an investigator, it is imperative that person bring their own counsel to the meeting. I have represented persons who insisted on speaking with investigators (which I generally discourage). The offense had no evidence it was committed by my client. It was reasonable that someone else committed an offense and my client was in the vicinity at approximately the same time. Without any evidence of my client committing any offense, the investigator asked a series of "how did" speculation questions. I refused to let my client guess at what offense occurred or how it might have happened. At the end of the day, as that term is coined, my client was not charged with any offense. I have a litany of such similar stories. No matter how friendly, the investigator is not your friend. He/she is conducting an investigation for the sole purpose of presenting charges to the prosecution for filing. I have taken over cases where the client had already been "interviewed" and the statements made were written in a report as if the client was intentionally lying or misrepresenting the facts because they were "contradicted" by other statements or perceived "evidence". Charges were filed, in that case, the client was in jail for 26 months awaiting trial. At the conclusion of the trial and jury verdict, he walked out of the courtroom a free man.

One aspect of that case was the difference in the way the written report stated matters and the videotape of the interrogation depicted them. In the video they were speculations and guesses about matters which he had no actual knowledge. This coupled with the mis-statement as to the physical evidence defeated the prosecution's case.

We will discuss "silence" a little more next time. In the interim, if you are in a situation where this issue seems applicable, then retain the counsel of your choosing before agreeing to speak with anyone, by stating that you are exercising your right to remain silent under the 5th Amendment and your right to counsel under the 6th Amendment. This mantra should be memorized because it is necessary to preserve your rights. Do not ask if you need a lawyer. If you have the question, then the answer is YES.

As always, be courteous, polite and direct. These are your rights use them or lose them.