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)

  • 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 12:10 pm by Norm Pattis
  • 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 3:51 am by C.M.
  • 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 8, 2012 at 2:46 am by Norm Pattis
  • 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?
    Posted on March 7, 2012 at 6:10 pm by C.M.

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