Your Right To Remain Silent - A Guest Blog Post By Austin-Georgetown Attorney Terrance Marsh

What does the Right to Remain Silent really mean?

How many times have you heard someone say "I'm going to plead the Fifth." If you've heard that before, they're referring to our U.S. Constitution and the Bill of Rights. The Bill of Rights is the first 10 Amendments to our U.S. Constitution. These rights protect us from the government (police are part of the government). Our right to remain silent is written in the Fifth Amendment to the U.S. Constitution. There are many rights packed into the 5th Amendment. Here are the exact words:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

- 5th Amendment to the U.S. Constitution

Why is the right to remain silent important?

The part referring to the right to remain silent is in bold, and underlined above. The right to remain silent is so important because it protects you from being forced to say things, write things, or confessing when being questioned by police. It is a shield between you and the government (police are part of the government)!

Being compelled in a criminal case as a witness against yourself is the fancy way of saying that the government can't force you to testify against yourself or self incriminate. Being forced to testify against yourself pretty much explains itself. If you are charged with a crime, the government or the prosecutor can't force you to testify.

Over time the Courts have said that our Fifth Amendment right to remain silent includes contact and questioning with police. Police are allowed to go up to you and talk to you on the street, or in your car. However, you don't have to answer the questions police ask you other than identify yourself. Your right to remain silent includes all police questioning - including confessions. Never confess to anything and especially don't put anything in writing when the police question you. I'm a big fan of examples so let's use an example.

Police Questioning and The Right to Remain Silent

A few months ago I had a client named John who was arrested because police suspected him of dealing drugs. Police picked John up with a Warrant of Arrest at his home and brought him to the station for questioning. Police read him is Miranda Warnings. If you've ever seen an episode of Cops or Law and Order you've heard this a millions times:

“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 an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”

The moment the police went to John's house, knocked on the door, and began asking John questions other than his name, his 5th Amendment right to remain silent had kicked in. Why?

John's right to remain silent kicked in because the police asked John questions after he identified himself. John could have told police "I don't want to talk to you or answer any questions" and that would have been perfectly legal. As a matter of fact, that's exactly what I would have advised John to do if I was sitting next to him. The police are allowed to ask as many questions as they'd like and as many as you'll keep answering. Luckily, John didn't answer very many of the questions police asked. More importantly, the police didn't question John further or try to get a confession out of him. John kept his mouth shut, and because of that his felony drug charge was dropped  down to a misdemeanor.

Summary

The true meaning of the right to remain silent is for people to be free from government (police) questioning. Never answer questions from police unless the question is to identify yourself. Miranda Warnings are given to you by police so that you are aware it's your right not to speak with police. Knowing the meaning of the right to remain silent can help protect you from past or future criminal charges that police investigate. Always follow the law.

But just remember, don't make the cops' job easier than it has to be and if nothing else, don't do their jobs for them. Remember the meaning of our right to remain silent.

Why Judges Tilt To The Right - A Follow Up

Judges tilt to the Right.  You heard it hear first.  Well, no, you didn't, because the New York Times published an article on Super Bowl Sunday that investigated a Harvard study  that determined that judges lean to the right.  The article attempted to go one step further, and figure out why judges lean to the right.  The article failed to reach that conclusion, other than stating the higher up the judicial ladder a judge gets, the more right leaning he or she tends to be because the judge has less discretion. 

The study determined that lawyers are more liberal, more left leaning than the rest of society, and that judges are more conservative than lawyers.  This raises the question: should judges proportionally represent the ideology of lawyers, or some other group?  Back to the statistics:  the study evaluated the liberalness of different people and types of lawyers.  It found, to my great surprise, that prosecutors, Big Law Lawyers, and law firm partners are more conservative than liberal, and even more liberal than judges.   They are all the left of Jeb Bush, who is my bet to be the next President, regrettably.   Also unsurprisingly, Government Lawyers and Public Defenders are more liberal than just about most in politics and the legal profession.  I would like to no that also unsurpisingly, but someone confusingly, and certainly agonizingly, lawyers that graduated from schools outside the Top 100 are the most conservative group of lawyers.  That is a real damn shame, considering they (we) make up the vast number of lawyers that have the greatest connection to everyday people, because we are every day people.  Damn Fox News.

Professor Eric Posner is quoted in this article as saying that Republicans should be congratulated for being able to bring much-needed ideological balance to the judiciary.  This guy is highly regarded as one of the top legal minds, like his father, who is also quoted.  Now, I know I am in Texas.  I know I am Harris County.  I know I am in Houston.  Trust me, the Republicans don't need any congratulations. They have done a mighty fine job at controlling the ideology and course of the judicial system, and the judiciary is way too conservative from sea to shining sea!

Reagan started the War on Drugs in the 80's.   Since then, prison populations have boomed.  USA incarcerated more people than any other country in the world.  We have only 5% of the world's population, but 25% of the world's prisoners!  This is a direct result of the conservative War on Drugs, and it comes at your expense. Another "recent" conservative phenomenon is tort reform, which is the result of Carl Rove and his cronies.  All tort reform has done is harmed the average man, the blue collared hard worker.  Both policies were accepted by the judiciary, and what both do is keep the rich rich and the poor poor.   This begs the question: Is being tough on crime even a conservative value?  Is not allowing the a person to sue a corporation a conservative value?  Makes you think twice, doesn't it?

Is a republican judiciary really good for you?  Is a republican judiciary good for society? Think of what has been good for members of our community and communities across the country and they are undeniably liberal and undeniably successful:  Drug Court, Veterans Court, Mental Health Court and Prostitution Court.  These are proven, effective, and liberal.  Most importantly, it is up to the judiciary, by and large, to create and support these courts. 

I intended to write more about the article, namely how lawyers contribute more to political campaigns than laymen, and how future judges contribute more than lawyers who do not become judges.  Judges are supposed to be neutral, but it is hard to do that when you are accountable to voters every few years, and the only people voting are grassroots hardliners. 

Finally, to tie this in to trial lawyering:  If judges are are still, on the whole, more liberal than society, should we go to judges more often for punishment?  I think not.  It has to remain a case by case judge by judge decision.  That being said,  wouldn't that make for a grerat capstone project for a graduate student at Rice University or University of Houston, to do a statistical analysis to determine whether judges or juries give better sentences. 

Setting a Case For Trial In Harris County Criminal Courts

They will do just about anything to keep a lawyer from setting his case for trial, and I love it.  I have a brave client.  He was charged with possession of marijauna and the State gave him a nice offer, a.k.a. a conviction, of time served.  That means he would plea and his case would be over with, except for a six month license suspension.  My client was having none of it.  If they want to prove that he is guilty, go ahead and make them prove it, he says.  The ADA, takes the case to her boss makes her enhance the case.  Why was this done?  Most likely to dissuade my client from making the ADA work and try a "stupid marijuana case."  Guess what?  We agree, it is stupid.  So then we have to approach the judge to get a trial setting.  This judge doesn't believe that me, in my youth, has informed my client of the risks of trial.  She expresses concern that I have a trial fee and that my bar card is at risk.  I mean, really, what business does she have being concerned with my financial circumstances and the structure of my contract?  She was very nice, but also "paternalistic."  I suppose part of a judges duty is to encourage compromise; to encourage cases to settle.  However, I feel like that has a place more so in the civil courthouse than the criminal courthouse.  I said at least three times that my client just wants his story heard by six members of the community.  This is the second case I tried to set for trial in two weeks, and each time the judge urges me to urge my client to plea.  I am glad the judge told me she never was a defense lawyer, but that just begs the question: how can any judge be neutral who hasn't worked both sides of the docket?  She didn't seem to grasp that my client made up my mind to exercise his right to trial, and that he does not care that it will take time out of the court's more important time, or as the property folks say, highest and best use.  If a DA wants a convictions, make them work for it.