Some Risks Associated With The “Right” To Remain Silent

The “Self Incrimination” clause of the 5th Amendment to the United States Constitution provides “No person shall be…compelled in any criminal case to be a witness against himself.”  To most people, that language simply means that everyone who is (or may be) accused of a crime has “the right to remain silent.”


Although one’s right to remain silent may be considered a basic, universal right, exercising that right is not without consequences.  This blog post will focus on two of those potential consequences, although there are certainly others.  The two I have chosen are ones that I have personally observed take place many times in the cases I handle through my work as a parole lawyer.

As a threshold matter, and as a worthy subject of a future blog post, it is certainly valid to ask if it makes any sense at all to have a justice system that would encourage or even allow systemic negative consequences to arise from the exercise of a constitutionally protected legal right.  Perhaps in the not too distant future, the legal world can at least reach an honest consensus that the risks discussed in this post are very real, and that choosing to exercise one’s rights under the 5th Amendment should not have profound and negative consequence on the outcome of a criminal prosecution.

Risk #1: Incur The Wrath of Those Who Don’t Respect The 5th Amendment

Bart Simpson Chalkboard

An inmate I interviewed not long ago had been caught and arrested while running away after he jumped out of a vehicle containing four young men between the age of 17-20.  The vehicle they were in matched the description of the vehicle that had just fled a convenience store following a robbery.

Because there were only two police officers (with more on the way), the four boys/young adults were smart enough to run in opposite directions.  Only the one I interviewed was actually captured (and badly beaten up afterwards) that night.

Aside from being charged with a first degree felony, and the ass kicking he had just received by angry police officers, this young man had a pretty big problem on his hands; the police still had not caught the other three guys who had fled the vehicle on foot. Moreover, no weapon had been recovered.  Since no shots were fired during the robbery, finding those other three guys and the gun were certainly worthy goals of law enforcement personnel.

The young man made the entirely reasonable and prudent decision not to speak to the police officers. The police told him that he would be punished in a very big way if he did not give them the names of the other three young men.  In other words, help them do their jobs or else.  He repeatedly refused to tell them anything, despite all manner of threats and coercion.  Finally, he asked for an ice bag for his swollen face and he was told he would get all the ice bags he needed if he told them the names of the other suspects.  He refused again and finally asked for a lawyer.  One of the detectives simply stood up, glared at him and told him that he personally guaranteed that the prosecutors and the Judge would make sure he was severely punished for not helping them.

He was sentenced to 40 years by a judge who openly chastised him for “arrogantly” withholding information in defiance of the hard working men and women in the law enforcement community, who were, after all, just trying to do their jobs to make the community safe.  The judge went on to tell the 17 year old how dangerous and irresponsible his behavior was for putting officers’ lives at risk by running away from the vehicle rather than remaining at the car so he could be arrested.

Apparently, a few other details escaped the judge’s thought process….the lack of a prior criminal history, the fact that there were no injuries, no shots fired, and the store clerk indicating that he was not afraid of the boys and did not believe they wanted anything more than beer and the couple hundred bucks he pulled from the cash register drawer.

He was just 17 years old, and he was still attending high school at the time of the offense.

As I interviewed this man, who was now in his mid thirties, it was obvious to me that the seemingly reasonable choice to exercise his constitutional right to remain silent was indeed a very expensive choice.

Risk #2 Documentation Used To Prosecute Is Incomplete or False

lazy cops

A very common scenario that occurs time and time again as the police investigate allegations of criminal wrongdoing is incomplete, improper, or blatantly false documentation in the police reports. That is not to say that the police intentionally make reports that are false, although that certainly does occur sometimes.  Even assuming truthful information in police reports, any report that fails to obtain thorough information from each person involved in an allegedly criminal occurrence may be inherently unreliable.

Let me give you a real life example of how this problem can manifest itself in a typical case. I met a client a few months ago who had pleaded guilty to aggravated assault with a deadly weapon, and he accepted a 12 year prison sentence.  Here is what really happened…

The man had been socializing with a few friends at a bar when he was approached by a guy who was outraged over a girl who left him for this man.  The angry ex boyfriend threatened to kill the man who was now seeing his former love.  My interviewee told the angry ex boyfriend to leave and leave the girl alone too.  The ex boyfriend proceeded to punch the prospective client.  The fight went outside the bar, and the irate ex boyfriend lost the fight, badly.  My prospective client left soon afterwards, and he and his friends hoped they had seen the last of the angry ex boyfriend.

Unbeknownst to the men who had just left the bar, the angry and humiliated man called the police.  He falsely claimed that he was minding his own business when the man (who just happened to have recently stolen his girlfriend) tricked him into coming outside and then allegedly attacked him with a baseball bat.  The police called for EMS, and the ex boyfriend kept up his false charade with EMS and hospital employees.  He knew enough to know that getting skull x-rays and a CT scan would only help bolster his tall tale.  Surprise, surprise, all tests came back negative and he was released from the hospital.

Weeks later, as my prospective client left his workplace, he was approached by police officers who told him they had a warrant for his arrest.  He was immediately arrested and charged with aggravated assault with a deadly weapon.  He was never interviewed at the police station.  Perhaps the police figured he would invoke his right to remain silent. Perhaps the police simply felt they had what they needed to prosecute him and therefore, saw no need to even bother speaking to the accused.

The man hired an attorney who told him not to talk to anyone about the case, which necessarily includes the police.  He went through the typical process of multiple court dates, discovery motions, etc.  In the end, the man’s criminal defense attorney convinced him to accept a plea agreement for 8 years for aggravated assault with a deadly weapon. His lawyer told him that the police report made him look pretty bad.  Yeah, no kidding!  He was told that the case was “a swearing match”, but that the prosecutor would try to introduce the police report and call the “investigating” officer to the stand, then seek to introduce the EMS and hospital records into evidence, more for dramatic effect than for any really legitimate purpose.

This type of scenario described above is a lot more common than people might think. Although the suspect never directly invoked his right against self incrimination, the existence of the right likely prompted the investigating officers to fail to even bother asking him for his input on the matter, particularly on the night the scorned and humiliated ex boyfriend concocted his version of reality.  Even his own attorney likely felt that talking to police investigators after the arrest for the purpose of creating additional or supplemental police reports was likely a bad idea, and that the right against self incrimination was the safer route, not to mention being the route less likely to require extra work.

It just seems to me that in order to be credible, an investigation needs to include gathering evidence from both people who had engaged in an altercation. Perhaps, had he/she investigated, the investigator might have even figured out which of these men would be more likely to have a reason to attack the other one, which one came to the bar and sought out the other one, which one was the new boyfriend and which one had been dumped, etc. etc.

Like so many other people who sign plea agreements, as trial approached, the man was told two things…One, you could get a much, much bigger sentence if you don’t take the deal, and Two, he would “make parole” in 4 years (the offense is classified as 3g and therefore requires the offender serve one half of the sentence before being eligible to make parole).  The word “eligible” was not used, and the reality that 3g offenders have a significantly lower chance, in general, of making parole on their initial parole eligibility date were never discussed.

If I went out and asked 100 people at random whether they understood the words “right to remain silent”, I’m pretty sure almost all of them would answer in the affirmative. However, although we all may have a very basic understanding of what this right involves, I would respectfully like to suggest that the right to remain silent comes with many potentially negative consequences.  Moreover, I personally believe it is worth looking deeply into any system in which invoking one’s constitutionally guaranteed rights results in negative consequences for any such person.

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