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Posts made in August, 2012

By on Aug 23, 2012 in Case Law, Communication, Constitution, Court, Criminal, Fifth Amendment, Misconduct, Police | 0 comments

As I’ve written many times before, when dealing with the police, silence is golden. When the police are investigating you for a crime, remember “You have the right to remain silent” and “Anything you say can and will be used against you.” When I share this good advice, people inevitably ask “Don’t I look guilty as hell if I don’t answer their questions?” The short answer is “Yes, but not to the people that matter.” Why that is and who matters helped decide the results of a recent case, and is the focus of today’s post. Before we get into the nitty-gritty, let’s talk about these constitutional rights generally. These rights, like your 5th Amendment right to silence, your 1st Amendment right to free speech, your 6th Amendment right to a jury trial, are yours until they are waived. In other words, they can’t be taken away unless voluntarily relinquished. That’s an important point to remember. A question that comes up a lot in 5th Amendment cases is whether the right to silence was in fact voluntarily relinquished. Can you give or trade away your rights? You certainly can waive your rights, but generally speaking, you shouldn’t. You can also make an exchange for relinquishing your rights, and sometimes it makes sense for a defendant to do that. For example, a defendant could agree to waive a jury trial, and in exchange the prosecution could agree that if found guilty, they would recommend the minimum sentence. You could waive your right to silence and testify against a co-conspirator in exchange for being charged with a smaller crime, or even immunity. As long as you know what you’re getting into, rights can be bartered like anything else. But considering the importance of these right and the high-stakes nature of a criminal charge, it’s best that your attorney does the negotiating for you. When rights are lost via coercion, it gets trickier. I’ll explain that concept with an analogy. If your employer has a policy that lets you take one Wednesday off a month, that’s a pretty useful perk. But if your boss tells you anyone who takes the Wednesday off declines receiving a yearly bonus, you are coerced into not taking advantage...

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The facts and circumstances of your case may differ from the matters in which results and testimonials have been provided. Every case is different, and each client’s case must be evaluated and handled on its own merits.