Perhaps any seasoned civil or criminal trial attorney has had (or heard about) the horror story case where his or her client (now potential criminal defendant) did not understand that the right to remain silent1 applies in all places, at all times, and to all statements where it could later result in criminal charge. Silence is priceless. This blog post addresses three areas you must know and understand where you, a citizen, would be better served by consulting a defense attorney before “talking” (and why).
First, in any proceeding, civil, regulatory, administrative, and, of course, criminal (i.e., a police officer knocks on your door and wants to talk with you), a person may elect to remain silent. Those of you reading this blog post may be asking, “Wouldn’t this have consequences?” The answer is as obvious as the question—it is “yes” outside the criminal context. From a personal injury deposition involving wrongful death by your driving to a hearing in a divorce proceeding, asserting your Fifth Amendment privilege may be used against you for the purposes of that proceeding. It may wipe out your insurance coverage or cause you to lose custody. However, it cannot be used against you to bring or in a criminal charge or be used against you in a criminal proceeding.
What this means is while it may cost you, assertion of the Fifth Amendment right to remain silent will reduce your chances of being criminally charged or convicted—if the statement is not made it cannot be used to charge or prove a crime and protects the most precious liberty—namely the right to freedom over incarceration. So sometimes it comes down to balancing what you value most, your money or your liberty (freedom). This is a decision to not make lightly, with criminal defense counsel beforehand as there may be techniques or ways to minimize this conflict in the first place.
Second, in many cases, even if it is apparent to you what you say could have criminal implications, the human desire to explain is often overwhelming. However, avoid it: too many statements or explanatory words will inherently have what are potential contradictory statements. But too few will inadvertently leave out some key detail and result in the situation where later additions or explanation to your statement will appear untruthful. Namely, the question will be asked if it is so important, “How come you didn’t remember it then?” This calls the entire statement into question as well as your credibility. Would you want a criminal jury to decide this for you?
Third, and perhaps most importantly, the line between negligence and civil liability and criminal exposure is very factually and legally “thin”. Something negligent, with enough analysis, may be deemed to be reckless, which may result in civil liability as well as criminal charge and conviction for criminal recklessness. Even so, the question becomes raising this situation with counsel beforehand and determining if a criminal defense attorney is appropriate to assist and/or the propriety of remaining silent. Common cases where a defendant may inadvertently make a statement or admission that causes criminal exposure are the following: 1) Department of Child Services investigations and proceedings; 2) Divorce proceedings; 3) Protective order hearings, and 4) civil litigation involving the use of monetary funds.
For these reasons, in all but the most routine of legal matters, you should be able to answer this question or be seeking advice from a criminal defense attorney. The question, asked a different way, is, “Will any question you answer tend to indicate you committed a crime?” If you don’t know the answer to this question, the prudent person does not attempt to explain it away but talk with experienced criminal defense counsel—in advance. Asked a different way, “Would you bet your freedom on it?” You have a Sixth Amendment right to criminal counsel, use it!
This blog post is written by attorneys at Dixon & Moseley, P.C. who handle criminal defense matters throughout the state of Indiana. This blog post is written for general informational purposes only and is not a solicitation for legal services or specific legal advice. It is advertising material.
