5th Amendment

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Should you talk to the police?

No.

That was easy!

Oh, fine. Let me go into a little more detail.

If you are the victim of a crime or need assistance in any way, absolutely talk to the police. But that’s not what this question is really asking. If there is any way that you might possibly be considered as a criminal, should you talk to the police (without a lawyer)? The answer is always no.shut-up

The main reason is that people just don’t know when they should or should not talk. So it’s better to just not talk in all situations.

Will it help you to talk to the police sometimes in these situations? Only if you have an air-tight alibi. (“I was in Europe all week, here’s my passport.”) The problem is that many people think what they say will help, and it doesn’t.

“If I explain to the cop why I hit the guy, he’ll certainly understand and not charge me” will not help you.

“Yes, I was there but I wasn’t involved with any of those guys” just gave the police half of what they need.

“I only had two beers, so surely the cop will understand that I’m not really drunk if I tell him that” isn’t in your best interest to say. (Unless maybe you actually are talking to Shirley the cop.)

It’s not your job to prove yourself innocent. It’s their job to prove you guilty. They need to prove that you were there, that you did something, and that the something you did was against the law. If you say, “Yes, I was there that night, but that didn’t happen” you’ve already made 50% of the case for them.

Remember: the police are trained to get confessions. That makes their job so much easier when that happens (and makes my job so much harder). Note that I said they are trained to get confessions. That’s not the same thing as saying they are trained to get the truth.

Look, I’m a trial lawyer. I’m trained to get confessions in a different way. I look at the statements made by officers and witnesses and look for errors, mistakes, misunderstandings, and lies. And I will use what you said against you at trial whenever I can. You’ll have to explain why you said what you did when you did. You think the District Attorney isn’t going to do the same thing to you, the defendant? Why give the DA the ammunition needed for that?

No, remain silent, as is your Constitutional right. Provide your name and address and identification if asked; don’t argue with the officer; don’t talk about your rights; remain polite and calm. Let the lawyer do the arguing for you later.

If nothing else, by not talking, I can work out a better deal for you if you have to plead to a crime. If you’ve already given the police everything they need, I have nothing to negotiate with on my side; nothing I can offer in exchange for a better deal.

The best legal advice I can give anyone is really quite simple:

Shut up!

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Silence is Guilt

I have always given this advice to all my clients (and anyone willing to listen): If there is any chance you might be a suspect, even if it’s not true, do not talk to the police. There is nothing you can say that will make things better. Their job is to get you to confess or at least say things that can be used against you. That makes their job so much easier later. The only exception is if you have an air-tight alibi (“I was in Europe the last three months and here’s my passport to prove it.”)

Well, I’m not sure what to advise them now. The Supreme Court yesterday ruled that silence can be used against you, too.shut-up

According to this decision, the District Attorney is allowed to argue to the jury that your silence can be interpreted as a sign of guilt.

Conservatives everywhere are thrilled with this new interpretation of the 5th Amendment — an interpretation which wholly new and not supported by any documentation from the Founding Fathers whose “intent” they always say should follow. Apparently, every Amendment has exceptions (except, of course, for the 2nd.)

This, by the way, is a great example of “judicial activism” wherein the judges write laws and change the meanings of long-established precedent. You know how much conservatives hate judicial activism. Well, unless they agree with the result.

My only hope is that some states (such as Pennsylvania, where I practice) will negate the decision. After all, a state can always give more rights than the bare minimum required by the Constitution.

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Supreme Court OKs internal searches without a warrant

The courts had previously ruled that taking of your blood for DNA purposes is basically a “search and seizure” protected by the 4th amendment and cannot be done without a warrant. Now that science has progressed to the point where cotton swabs of your saliva are enough, the Courts have said “Oh, well, that’s different” because, um, because we said so.

Apparently, your right to be free from a search doesn’t apply if the search is not bothersome. Clearly, therefore, if the police come into your house without a warrant and wear white gloves and put everything back afterwards, that would be just fine too.

Stock Photo of the Consitution of the United States and Feather Quill

If you’re a cop and you think someone is a suspect and you need DNA, and you have probable cause, you can get a warrant for DNA. It’s done all the time. You go to see a judge, present your evidence, and the judge says yes or no. (And yes, good judges do say no from time to time. I’ve seen it happen.)

This case, however, was about getting DNA on anyone who gets arrested. No need to see a judge first to prove you have probable cause. So those cops who randomly stop minority kids in New York and arrest them on “loitering” or other minor charges? You can bet they’ll soon be carrying cotton swabs around with them.

So why is this a bad thing?

It’s bad because this is self-incrimination. You know, the thing prohibited in the 5th Amendment. You are being forced to provide evidence to the police against your will which could be much more incriminating than any confession. They don’t need your DNA for identification purposes — they already know who you are and can probably confirm that through your fingerprints — it’s being used to help build their case against you.

That’s the difference and that’s the problem.

Remember, we’re talking about people who are arrested, not convicted. Many people are arrested and never convicted. Sometimes the charges are never even filed. Once you are convicted, having to provide DNA as part of your probation requirements is perfectly valid, because you lose many rights once you’re convicted. This, however, takes away your rights before you are even charged.

The most surprising thing about this decision is that Scalia voted with the liberals. Every once in a while the voices in his head that he thinks are the Founding Fathers tell him the right thing, I suppose.