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The Right to Remain Silent

As we close out the year, let's talk about your "right to remain silent". What is it? How do you exercise it? And, when is your silence going to be used against you?

The basis for this right is found in the 5th Amendment to the Constitution of the United States and is thirteen simple words "No person ... shall be compelled in any criminal case to be a witness against himself ..." But this is not as simple as those words might indicate. If you notice the Amendment never actually says anything about silence, though it is implied. When do you become a witness against yourself? Is it only in a courtroom? Or are there other times and places where this applies?

The answer to these questions is, you are being a witness anytime you are questioned in connection with a criminal matter for 5th Amendment purposes. Whether or not you are a target of the investigation you are still witness. Certainly, if you are a potential target of an investigation you should exercise your 5th Amendment right. But you may not know what is being investigated and therefore, you have to excercise caution in making any statement. This is where obtaining legal counsel becomes important to you. (Your 6th Amendment right) Counsel can spot questions with subtext not quickly grasped by the interviewee. As an example, I was representing a person once being investigated for an allegation of sexual harrassment in the work place. There was a government investigator conducting an "interview" of my client who asked, "have you ever had non-consensual sex with a woman?" My client seemed befuddled by the question, but before he could answer, I clarified that the investigator was asking if he had ever raped anyone. This clarified question drew a quick NO. There was no confusion or hesitation when the question was clear.

So what if you say, "I don't want to talk to you." to an investigator. Seems clear enough and direct enough to invoke your 5th Amendment right doesn't? The U.S. Supreme Court has held this answer is ambiguous and does not exercise your 5th Amendment right. Further the Supreme Court has held that while a properly invoked right to remain silent cannot be used against a person, the ambiguous silence can be used against a person.

So what do you do? The clear and concise answer is: "I am exercising my right to remain silent under the 5th Amendment of the Constitution not to talk to you." The only other thing to say is I want my lawyer present immediately. Then say nothing else.

Never, let me repeat, NEVER use words which are equivocal, such as "I think" "I might" or worse "should I" these words do nothing to help you and they provide safe haven for your adversaries. We may talk more in depth about this complicated area of the law next time. But for now I wish everyone a happy holiday season, whatever that may be for you. I will return with more about your rights after the first of the year.

Until then, as always;

These are your rights use them or lose them.