Fifth Amendment Right to Remain Silent
The police want to speak with you — or your child — about some incident or issue. They may advise you of the right to remain silent and cannot tell you not to take the 5th. They are also taught to tell you that being open with them can help resolve the problem, or make it better if you are actually charged. Not true.
There is nothing you can tell a cop that could ever help you. Ever. Statements that hurt you will be admitted at trial against you as exceptions to the hearsay rule. But statements that could help you are hearsay and will not be heard by a jury at trial. Remember, exercising your right to remain silent can never be used against you.
Call A Lawyer As Soon as Possible
Politely decline to speak with the officer, and ask if you are free to leave. If so, leave, and call a lawyer. If you are not free to leave, tell the police you have nothing to say and want a lawyer. Why?
“Any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances.”
Watts v. Indiana, 338 U.S. 49, 59 (1949) (Justice Robert H. Jackson, who also served as the U.S. Attorney General, and chief prosecutor at the Nuremberg trials).
Consequences of Speaking With the Police
An example. Investigators want to discuss a financial matter with you. Seeing no harm, you tell them truthfully that you considered the transaction, but dropped out after preliminary discussions. You identify some documents which do not have your name on them. What you do not know is that federal crimes are now suspected. Or, after your involvement, the nature of that transaction changed so as to constitute white collar offenses. More importantly, a wrongdoer now seeking to get a lesser sentence by identifying you as being involved in the scheme, had produced those documents trying to tie you to the transaction. Your truthful assertion of innocence will be used against you to show you corroborated what the liar claimed, at least in part.
Another example. There was a shooting, and the police later ask you questions. Again seeing no harm, you tell them truthfully you were driving nearby, heard shots, and fled from fear of being hit by a stray bullet. What you do not know is that a store video several blocks away caught a license plate of a car racing from the scene. The police then got your photo from the RMV, and a witness mistakenly picked you out as the shooter. Your statement of innocence – admitting being “on” the scene, hearing shots and fleeing – will be used at trial as evidence of your guilt.
As the Supreme Court put it,
“one of the Fifth Amendment’s basic functions is to protect innocent persons who might otherwise be ensnared by ambiguous circumstances.”
Grunewald v. United States, 353 U. S. 391, 421 (1957).
Over 25% of the falsely convicted people who were later exonerated by DNA had made a statement that was used against him at trial.
Do Not Be Coerced
Police prey on people who think if they do not “cooperate,” they will be perceived by others as having something to hide, and therefore they must be guilty. Wrong. What you say and what the authorities hear and report are almost always different in important respects, and invariably damaging.
Do not make the fatal mistake of speaking with law enforcement agents – in a large percentage of cases, people are convicted solely based on what they said to the police. No matter how pressured you feel, judges very very rarely determine later that a statement was not voluntarily given.
This injustice is easily avoided — exercise your right to remain silent.
Attorney Jack Cunha can help protect your child.
Call 617-523-4300 to schedule a consultation. One of our Boston criminal defense lawyers is a native bilingual speaker in Spanish and English. Another is fluent in French.