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That Golden Silence

By on Aug 23, 2012 | 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 of the Wednesday-off policy. The company doesn’t forbid you from taking advantage of their offer, but they make it painful to do so. In the court system, that painful exercise of your rights is a no-no.

An old U.S. Supreme Court case, United States v. Jackson, brought this issue to a head. The Federal Kidnapping Act authorized the death penalty as the sentence for someone convicted of a certain kind of kidnapping, if it was recommended by the jury. On its face, the Act did not authorize the death penalty if a person waived their right to a trial by jury. In other words, if a person waived their right to a jury trial, they didn’t face the death penalty.

The Court found this burden on a person’s trial rights de facto unconstitutional and struck down that portion of the law. The Court found it was simply too coercive in encouraging defendants to waive their rights.

So back to the 5th Amendment and the right to stay silent. Is it coercive to get someone to waive their rights if exercising those rights will make someone look guilty? In other words, how bad does someone look when a jury is told they asked for a lawyer, or invoked the 5th Amendment?

It makes the defendant look guilty as hell when a prosecutor asks  a defendant a question and they invokes their 5th Amendment. It also looks terrible when a prosecutor asks a detective how the interrogation went, and the detective replies “Not great, he immediately asked for an attorney.” And that is why our courts have repeatedly held it misconduct to even share that a defendant asked for a lawyer, or for a prosecutor to ask a question just to have a defendant invoke the 5th.

Certainly if you do ask for a lawyer or refuse to answer a question when the cops are talking to you, the cops might think you look guilty.  But the police are not the jury! It’s the jury’s opinion that a defendant should care about. The cops’ opinions are completely irrelevant for a final determination of guilt or innocence.

Division Two of the Washington Court of Appeals recently published a case highlighting this principle. In State v. Fuller, Mr. Fuller appealed his jury-found conviction of Premeditated Murder. One of his arguments was that the trial court screwed up by permitting testimony regarding Mr. Fuller’s silence.

The facts of the case were extreme. A cabbie was found stabbed to death after picking up a fare at 3:00 in the morning. Detectives eventually ran a DNA test of the inside of the cabbie’s hat and found that DNA pointed to Mr. Fuller, although not with 100% certainty. A surveillance video in the area where the cabbie was found also showed a man matching Mr. Fuller’s description, although again the evidence could not conclusively show the man was Mr. Fuller.

Police did arrest Mr. Fuller and interrogate him about the murder. Mr. Fuller generally answered questions about his whereabouts, but declined to talk about whether he was the man in the video. When the detectives accused him point blank if killing the cab driver, Mr. Fuller declined to affirm or deny the allegation.

At trial Mr. Fuller’s attorney made a motion to exclude that portion of the interview. The judge denied the motion, saying the rules of evidence permitted a statement to be considered true when it wasn’t denied by a defendant.

The prosecution made liberal use of Mr. Fuller’s failure to deny the murder allegation, incorporating it into their opening slide show, examination of the police, and closing argument. Mr. Fuller was convicted as charged.

Based on the usage of his post-arrest silence to imply guilt, the Court of Appeals reversed. They acknowledged there was an evidentiary rule that allowed silence to be used against a speaker, but that rule applied primarily to non-criminal defendants. In criminal trials, the right to silence was inviolate and liberally construed. The Court, quoting an earlier case with similar facts, held:

“[U]nder the Fifth Amendment to the United States Constitution, no person shall be compelled to witness against himself in a criminal case…In either pre-arrest or post-arrest situations, every person has the right to remain silent, which silence cannot be used as substantive evidence of guilt. Accordingly, the State cannot elicit comments from a witness that are related to a defendant’s silence or make such comments during closing arguments in order to infer guilt.”

And based on the misconduct of the prosecutor and the errors of the trial court, the Court of Appeals reversed Mr. Fuller’s murder conviction and remanded it for a new trial. A powerful remedy but the constitution is never more important than when someone is facing spending the rest of their life in prison.

What does all this mean for the average person interrogated by the police? Protect those rights with your life. Don’t worry about impressing the cops or trying to make them think you’re innocent. They don’t matter. No jury will ever hear that you stayed silent when interrogated. And if you want a lawyer[], you have a constitutional right to one of those too. If you or someone you know is ever picked up by the police, feel free to give me a call.

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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.