The Fifth Amendment to the U.S. Constitution states: . . .No person . . . shall be compelled in any criminal case to be a witness against himself . . . These rights became more well-known in the context of the famous United States Supreme Court case of Miranda v Arizona. As a result of that case, the rights guaranteed by the Fifth Amendment are required to be told to criminal suspects in the form of the Miranda Warnings. The Miranda Warnings have become a routine practice and requirement of law enforcement in order to use statements of criminal defendants during a prosecution. The Miranda Warnings go something like this:

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense.

During my six years as a prosecutor in Pinellas County, Florida, I read countless police reports which documented statements given to police officers “Post Miranda”. Meaning that at some point in time, a police officer, usually in uniform, told the criminal suspect, “hold on here, I have to read you your rights.” Then the officer reads the Miranda Warnings. As a prosecutor, I would frequently wonder why in the world these people would admit their crimes to the police especially after being read the Miranda Warnings. Didn’t a light bulb, a siren, something, anything go off in these people’s minds saying perhaps I shouldn’t be speaking now? As a CLEARWATER CRIMINAL DEFENSE ATTORNEY I now know why. And I have to tell you that I am amazed. The usual explanations are: I didn’t have anything to hide, or I thought I would look guilty if I didn’t talk.

So let me get this straight. A POLICE OFFICER told you that your have the RIGHT TO REMAIN SILENT. That ANYTHING (Not just what sounds bad to you at the moment you are saying it) you say CAN and WILL be used AGAINST YOU in a court of law. And you just go right ahead and start talking. Hello! What are you doing? It shouldn’t be a secret; but apparently it is. If you don’t talk, you are not giving the police more evidence to use against you. If you do talk, you are giving them more evidence which CAN and WILL BE USED AGAINST YOU. Trust me. That nice police officer who says, just be honest with me, or I’ll go easier on you; will turn around in the next breath and say, put your hands behind your back you are under arrest.

The burden of proof is on the police and/or prosecutor to prove your case beyond a reasonable doubt. Don’t make that burden any easier by being a witness against yourself. That’s why you have the right to remain silent. I understand that at the moment you are being asked questions by a police officer about a possible crime. You may be intimidated, afraid, or embarrassed. So, you just start talking. It is important to keep in mind that after your initial contact with the police officer, a prosecutor is going to look at your case. Under most circumstances, one of the most important facts he will want to know is what you said. I can tell you that many times as a prosecutor, I would be making a decision on a case as to whether I was going to file formal charges. If I was on the fence, I would want to know what the defendant said. If the police had not spoken with the defendant, I would ask them to get a statement. If I found out that the defendant elected to exercise his right to remain silent and I did not believe I could prove the case without the defendant’s statements, I wouldn’t file a formal charge. When filing a charge the prosecutor must believe that there is a reasonable likelihood of a successful prosecution. If there is not enough evidence they should not file formal charges (of course whether they elect to do so anyway is the topic for another day). Many times, I would decide not to charge a person with a crime even though I personally believed that the accused in fact committed the crime. However, I knew that there was not enough evidence to prove the case. Or in other words, I did not use the accused’s silence against him. So yes, the police officer thinks you are guilty. The prosecutor thinks you are guilty. You may even BE guilty. Don’t help them out. The right to remain silent is an important right. USE IT!

Hello world!

November 4, 2009


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