Mar
07

When Silence Can Be Golden

Any man married for more than a decade should have an intuitive grasp of the dignitary interests served by the right to remain silent when accused. I write today for those without the requisite matrimonial experience.

The Fifth Amendment to the United States Constitution guarantees a person accused of a crime the right to remain silent. The government can neither compel an accused person to speak, nor use the accused’s decision not to respond to allegations against him. In other words, the accused is afforded the dignity of silence.

As a matter of law, this right can be asserted whenever the possibility exists that what one says could tend to incriminate him. One needn’t in fact be guilty of anything. All that is necessary is the potential for a statement’s use against him to make the evocation of the right proper.

Of course, in civil contexts, a witness’s decision to plead the Fifth can be used against them. Thus, you might be facing a claim of theft in civil court. Your adversary bears down on you with some accusation or other. You realize that answering the question could be perceived as an admission by an eager prosecutor, so you assert your Fifth Amendment right to remain silent. In this case, a civil adversary can stick your evocation of the Fifth to you, and ask a fact-finder, whether it be judge or jury, to hold it against you. "Did you see, ladies and gentlemen, how Mr. Jones squirmed when I asked him what he did with his mother’s jewels? Why he asserted a right to remain silent. You know what that means, don’t you?"

Marital conflict teaches the value of the right to remain silent.

Remain married long enough and conflict of one sort or another is inevitable. So, too, are the accumulated grievances spawned of a near lifetime of imperfect understanding of one another’s aims and intentions. Yes, love forgives all. But unless you are God, love is imperfect. From time to time almost everyone quarrels. When you stand facing an angry spouse, whether accused rightly or wrongly, there is no Fifth Amendment privilege. Anger demands answers. It insists on explanations. It craves concessions. The trouble is that once things come to the point of anger, mere speech in unavailing. In life’s larger conflicts a simple "I’m sorry" will rarely do. An angry accuser wants something inchoate and unnameable: every inquisitor knows the power of forcing desperate denials.

I’ve spent the past couple of days picking a jury in a domestic violence case. It is often challenging to get jurors to understand a defendant’s right to remain silent. Many folks assume that an innocent person has nothing to lose testifying. More than one potential juror has told me over the years that they would hold it against a man or woman who chose not to testify. So I tried the marital analogy on one potential juror the other day.

"How long have you been married, sir?", I asked.

"A long time," he responded.

"I’m betting there have been times when your wife accused you of something you thought was either untrue or unfair, am I right?"

The man nodded nervously, perhaps fearing that a copy of the court transcript might be sent to his home.

"On those occasions when you have faced such accusations was it sometimes the case that you concluded there was nothing you could say to defuse things?"

The man blushed, then giggled and agreed.

"Our law gives a person accused the right not to speak because it recognizes that once a prosecutor has made up his mind about you, there is nothing you can say that will make a difference."

"I can see that," the man said.

"So if my client doesn’t testify in this case, are you open to the possibility that his decision is unrelated to the merits of this case?’

The man agreed.

I say the right to remain silent protects the dignity of the accused. It’s too bad evoking this right can be used against a person in civil litigation. It’s also too bad the right cannot be asserted and respected in marital conflicts.

Sometimes silence is the best defense in response to an angry prosecutor, lawyer or spouse

Comments (4)
Posted on March 8, 2012 at 4:10 pm by Norm Pattis
Objection
Got it. No objection yet. I am more worried about opening door to broader inquiry. Let's continue this privately

Posted on March 8, 2012 at 7:51 am by C.M.
Objection
I was referring to he statement that the law recognizes that, once a prosecutor has made up his mind about you, there is nothing you can say that will make a difference and the question about whether it's conceivable a guy wouldn't testify for reasons having nothing to do with the merits of the case (to which I've had objections sustained by one of the best state court judges).

Posted on March 8, 2012 at 6:46 am by Norm Pattis
Voir Dire
Objection? Judge, if ever there were a context in which silence is golden it is marriage? I want to make sure this prospective juror understands the importance of the right

Posted on March 7, 2012 at 10:10 pm by C.M.
Taking the 5th
Norm, when your hypothetical voir dire question draws an objection from the prosecutor on whatever grounds deemed meritorious by the man in the robe, what is your response?
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

Disclaimer:

Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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