The Common Law #13

The Common Law #13
(The following column was originally published in May, 2011.)

The Common Law:
Please Be Quiet

By N. Bob Pesall 
Attorney At Law 
Flandreau, SD 

When I was in law school, a guest speaker came to one of my classes and told us “almost everyone in the state penitentiary talked their way in.” Most of us thought this was the introduction to one of those “stupid criminal” stories. I think it was, but that did not make it any less true. Three of the most amazing facts one learns in the practice of law are that (1) many crimes would be impossible to prosecute without a confession from the suspect, (2) most suspects will admit at least some of what they did wrong, even though nobody forces them to, and (3) sometimes innocent people say stuff that gets them into trouble. 

At the center of this amazing set of facts are the federal Fifth Amendment, and Article 6, Section 9 of our State Constitution. Both of these constitutions protect our right to remain silent. As is often the case, our State Constitution is subtly more protective than our national one but it would take more space than I have to explain why. In the interest of efficiency, therefore, I will use this space to explain the basic and important right to keeping one's mouth shut.

Traditionally, this right was more applicable to the Courtroom than to real life. There was a time, not too many generations ago, when people accused of crimes would be threatened, tortured, or imprisoned to get them to confess. These practices, unfortunately, could get the innocent to confess just as easily as the guilty. Also, there seemed to be something uncivilized to our modern minds about the idea of forcing someone to confess to something we could not prove by other means. 

Although the right was applicable in the Courtroom since the foundation of our Union, today that right has been extended to cover all points in a criminal case. This means that the right to keep quiet kicks in from the moment a police officer begins to investigate someone for an offense. 

Anyone who has ever been arrested, or watched television has heard the familiar refrain, “you have the right to remain silent. Anything you say can be used against you.” This is part of what is known as the Miranda warning, after the famous court case, Miranda v Arizona. In that case, the Supreme Court of the United States determined that, although far short of torture, the very experience of being arrested could coerce people into saying things they might otherwise not. To prevent abuse the Court ruled that anyone who was arrested should be reminded of their right to remain silent before any questions were asked. 

Amazingly, no matter how often we hear it, we don't seem to believe it. When a police officer comes up to us and starts asking questions, we feel a strange compulsion to answer them. Please make a note of this: You do not have to answer anyone's questions, and it does not matter whether they're a police officer or your brother in law. In fact, answering a bunch of questions about yourself can put you at risk even if you are completely innocent.

To illustrate, consider the phrase I hear most often in DUI cases, “I only had two beers, officer.” If a person is suspected of driving under the influence, saying “I only had two beers” almost never helps. If it is true, the officer can still testify in court that the defendant admitted he had been drinking, and that he was drinking beer. If this statement is false, and he's had a lot more than two beers, it's even worse. Now, the officer can testify that he admitted to drinking, admitted he was drinking beer, and that he lied about how much he had. Courts and juries do not like people who lie.

If a person gets arrested, sometimes police officers forget to give that famous Miranda warning. Contrary to most television programming, this omission is not a get out of jail free card. The warning is supposed to be given after a person is arrested, and before any interrogation begins. The general rule is, if police forget to give the warning, any admissions made afterwards cannot be used to prove guilt. Everything else the police gathered during their investigation, however, is still fair game.

In other words, if the police do not read you your rights after they arrest you, they cannot use your confession. However, if they have a video recording and 37 witnesses who are all able to come to court and testify that you did, in fact, ride your motorcycle through the bar and do a burnout in the front door, you will probably still get convicted. You will also be expected to write a check to the owner for the cost of repairing the carpet. 

The foregoing column is written for informational purposes only. It does not constitute legal advice, and is certainly not intended to be a guide to getting away with crime. N. Bob Pesall can be reached at P.O. Box 23, Flandreau, SD 57028, by telephone at (605) 573-0274, or on the web at