THE RIGHT TO REMAIN SILENT

Today I want to talk about the right to remain silent.  Despite it being one of the best-known American criminal justice rights, people who are under investigation still manage to run their mouths and leak information like a sprinkler to those who want to put them in jail.

You need to think about all of the ways you broadcast information to people; particularly under the stress of arrest.

Most conservatives haven’t been faced with this.  Need I say, times are changing.

So you know, this post is intended for an American audience.  If you are in some other country, you are subject to their legal system.  Some Americans forget that when they go abroad.

Your rights may depend on your pain tolerance.  In our scenario here, you have either been approached by law enforcement wanting to talk to you about something that happened, or you have found yourself not free to go following that happening.

Miranda

The cornerstone of the Fifth Amendment is the famous “Miranda” warning.  This arose out of a Supreme Court case intending to protect people against abusive interrogation.  It should be read to any suspect in custody prior to them being questioned about a criminal offense.

1. You have the right to remain silent.
2. Anything you say can and will be used against you in a court of law.
3. You have the right to have an attorney present. (If you invoke this, interrogation may not proceed without an attorney present)
4. If you cannot afford an attorney, one will be appointed for you.

Miranda is not, nor ever was, intended to keep someone from using against you anything that you freely say.

In order for “the right” to be an issue, four things must happen:

First, you have to be in custody.  That means that you are not free to go, and a reasonable person would perceive that.

Secondly, the person questioning you has to be present—not online or on a phone.

Third, the questioner has to be asking you questions pertaining to the offense they are planning to charge you with, or has to say something that could elicit an incriminating response.

A fourth item is also important—and that is that you must assert your rights clearly; otherwise, they will keep on questioning you.

A phrase that pays: “At this time, I am invoking my rights under the Fifth Amendment and have nothing to say until I speak to my lawyer.”

Good to Know

1. You should have a lawyer you can call. Take the time before you need one to research and line up a good one, and have their contact information close at hand, including what to do in an emergency.  Organizations like U.S. Law Shield and the U.S. Concealed Carry Association have legal assistance programs.  Aside from the benefit of having many government organs on their side, leftist groups do legal coaching with their members and have lawyers ready to do for them when they go out to pillage your block.
2. The rules for juveniles (check your state law) are a bit different. Generally, juveniles can’t waive their rights without a lawyer.  One way to get around that is to question them when they aren’t in custody, per se., or can be said not to be a suspect.  Versus you, perhaps.
3. The constraints of Miranda apply to law enforcement officers who are authorized to arrest others. They do not apply to other nosy government bureaucrats you may have contact with.

Now notice something else.  You may choose to say nothing, but it is also possible, if the police are amenable, for you to speak with a lawyer and then answer their questions with the lawyer present.  It might save you from an extensive legal adventure.

But let your lawyer tell you if that is the case, don’t guess at it.

Also, when we are personally involved in something, and emotional about it, we are never as cool or objective as we should be or imagine we are.  This is yet another reason to speak with counsel before you utter words that will go on the record and will be read back to you in court, and that cannot be taken back.

Pay attention to the officer you are talking to—and to the patrol car you may be sitting in.  Are there cameras visible?  You should assume they are there—seen or not, and that they are on.

This is both good and bad.

Good:  Abusive treatment is hard to cover up if they are so inclined.

But bad:  Everything said or gestured will be on the record, including you losing it and reading them their pedigrees in a tirade of blue words.  No matter how hard it is, be calm and shut up.

The latest camera systems will transcribe digitally everything said on the recording for read-back in court.

If they take you to an interrogation room and sit you down alone, there will be cameras and recorders on.

If they leave you long enough, you might start cursing your situation and talking to yourself—or better yet, if they put you in with a fellow suspect, perhaps you and they may talk about your situation.

I might add that if you are under arrest, you are compelled to identify yourself, truthfully. Refusing to do this will get you charged with another crime.

Lying to the police is also another crime.   And if you believe you can lie your way to freedom, you are already toast.  You will fail because:

1. If they are talking to you, they already know the answers to the questions they are asking.
2. You will never remember all of your lies, and will inevitably cross yourself up. Were you lying the first time, or the second time?  Expect to hear that in court.
3. You will “leak” physical and verbal signs of deception to a trained interrogator, no matter how hard you try not to.
4. You can’t lie about everything, and will find yourself blending truth with deception, and omitting or minimizing certain facts or subjects in your answers. There are ways to sort you out.  What you are untruthful about will give them clues in addition to what you truthfully tell them.
5. And in relation to Point Two, your credibility is everything in this situation—in court, or with an investigator trying to decide whether to give you the benefit of a doubt. A lie found or perceived will destroy that.

Hold Your Tongue

It’s not true that if you have nothing to hide, you have nothing to worry about.  You have no idea what someone else has gotten you into through lies or misunderstanding.  There are no innocent admissions.  If they are asking you a question, there is a reason.

With this in mind, we need to talk about the Federal agent.  It is a felony to make a false statement to a Federal agent.  “False” means any statement that is inaccurate or could be said is inaccurate regarding a material matter.  Read that again.  And since you don’t know what may be material, just ignore that part and shut up.

This is what they did to General Michael Flynn.  He made the mistake of having an “innocent” back-and-forth with a Federal agent about something in his office that seemed not to be a big deal.

Bulletin:  Every syllable you utter to a government official—and particularly, a Federal agent, is a big deal.  Michael Flynn was charged with lying to a Federal agent for mis-speaking when he thought he was doing the right thing.  Catching you in an alleged falsehood is a common Federal tactic referred to as a “process crime”.

I have a rule about talking to Federal agents—I don’t.  If I need to communicate with them about anything concerning me, I will do so only after talking with a lawyer and having them present.

In case you are curious, I have never been a suspect in a Federal crime and usually work “alongside” them, but you’d better believe I still have my guard up.  If one of them ever talks to me about something I have done, watch me shut down fast.

If a Federal agent is talking to you, they are there to arrest you or they are fishing.  They don’t have time for idle chit-chat.

The Bottom Line

If you are in “this spot,” the best thing that you can do for yourself is to shut your mouth and utter that line in the quotes above—with the sole exception of giving them your identifying information—and wait for your lawyer.  You will never talk your way out of trouble without help.

If they are asking you questions, they already are looking at you as a suspect, regardless of what may be said or suggested.  You don’t know what is really going on, or what they have been told or think they know.

It is legal for them to lie to you regarding what’s happening.   And as I already have pointed out, that sure doesn’t go both ways.

While this process of them trying to get you to talk to them is happening, they are trying to make a decision on whether they can or cannot sustain a charge against you.  If they think they have enough info, they will probably file it.

If they do not, and know or suspect the judge will throw out their probable cause (“PC”), they will let you go at least until they think they have enough to charge you.

This may see you arrested and taken to the pokey or detained long enough to decide this.  But at that point, you will almost certainly not help yourself by talking to those out to get you on their terms.

We will talk more about the legal system, and your do’s and don’ts, soon.

Mark Deuce has had a life-long career in community law enforcement. He is the author of Deuces Wild for TTP.