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Posts made in August, 2013

By on Aug 1, 2013 in Case Law, Communication, Court, Criminal, Fifth Amendment, Police | 0 comments

I’m a big advocate of not talking to the police. I advocate silence whenever someone is being investigated for a crime. And I advocate this for two reasons: 1) you are likely to get yourself in more trouble by talking, and 2) your silence can’t be used against you in future proceedings. Both of these are still true, but the United States Supreme Court has been eroding the protections of the inviolate silence recently. Your silence still can’t be used against you, but only if you properly invoke your constitutional right to silence. It gets a little muddy here, but let’s look at bit closer. Current 5th Amendment Law Under the 5th Amendment to the United States Constitution, as well as Article 1, Section 9 of the Washington State Constitution, no person can be compelled to produce evidence against one’s self. On its surface that means the government cannot force you to confess to a crime. If you look closer, it also means that the government cannot use your right to silence against you. After all, if you choose not to “produce evidence,” i.e. confess, your remaining options are to remain silent or lie. If you remain silent the prosecution could simply say, “If he was innocent he would have nothing to hide.” That seems unfair. Thus the right to silence means little unless you also have the right not be punished for invoking it. The right to silence doesn’t apply to every situation. Drivers are still required to hand over their driver’s license when being stopped by the police, for example, because that is a condition of the road. Similarly, if you’re involved in an accident, you do have to give identifying information at the scene. You do not have to admit fault at the scene of an accident, or anything that might incriminate you. But beyond vital statistics and some corner cases, the right to silence used to be fairly absolute. In recent years there’s been a bit of a shift of this absolute right. To be sure the 5th Amendment still exists. As a part of the United States Constitution, it will likely continue to exist for as long as the United States does. The issue...

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