| Silence Is Golden |
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CONVINCING CLIENTS TO KEEP THEIR DARN MOUTH SHUT Many clients facing informal interrogation by police interrogators for formal questioning before a Grand Jury or in Trial believe that if they take “the 5th” they are tacitly admitting their guilt of a crime. This is often true of high profile people who believe that this assertion will ruin their reputations, business fortunes, or politic interests because of the implications of criminal conduct in asserting their constitutional rights. In retrospect, I am sure Martha Stewart would love to reconsider those notions that convinced her to talk. The 5th Amendment protects innocent people and those charged with a crime. As attorneys we advise our clients to keep their mouth shut not necessarily because they have committed a crime, but because they are being questioned as targets by prosecution agents and talking could be very dangerous to their legal health. Thus, the 5th Amendment must be taken to insure their own words don’t aggravate their condition. I have never heard of anyone that was helped by talking to the police. As a rule, it can only hurt your case. Trying to sell this theory to clients is often very difficult especially when they feel they are innocent of any wrongdoing. They are convinced that telling the truth could not hurt them. We as defense lawyers should advise our clients of Martha Stewart’s example. Her case is basically a conviction for voluntarily talking to the government to give her side of the case. The result was an indictment, trial and conviction for giving false statements. However, she believed her words were accurate. Unfortunately, the government and 12 jurors disagreed. Thus, she had to notify the post office of her change of address. . . .prison! The U.S. Supreme Court decision in Ohio v. Reiner made clear the proposition that the protection of the 5th Amendment applies to innocent people. In a unanimous opinion, the Court said “we have never held, as the Supreme Court of Ohio did, that the privilege is unavailable to those who claim innocence. To the contrary, we have emphasized that one of the 5th Amendments “basic functions. . . is to protect innocent men . . .”who otherwise might be ensnared by ambiguous circumstances.” In the Reiner case, the defendant was charged with a shaken baby syndrome. He was in the presence of the child just before the child became symptomatic and under the highly questionable doctrine of shaken baby syndrome, the last person with the child must have done the damage through shaking. Reiner’s defense was the SODDI defense, in other words, “some other dude did it”, in this case the babysitter. The babysitter took the 5th and was granted transactional immunity and then testified that she did not shake or harm the child. She also testified that she had previously asserted the 5th on advice of counsel even though she was innocent. Reiner was convicted. On appeal, the Ohio Supreme Court held that the babysitter had NO 5th Amendment right because she claimed innocence. Therefore, the grant of immunity to her was illegal and prejudicial because the immunity effectively told the jury she was not the cause of the child’s injury. Reiner’s conviction was reversed. The U.S. Supreme Court then accepted the case and held that the privilege protects the innocent as well as the guilty, and because the Supreme Court of Ohio mistakenly held that the witnesses assertion of innocence deprived her of her 5th Amendment privilege against self-incrimination, this ruling was reversed. This scenario shows why clients must be informed and persuaded of the dangers of talking when they should KEEP THEIR DARN MOUTH SHUT. --------------------------------------------------- If you have any criminal questions you would like Dale Gribow to answer, please write to him at the Law Offices of Dale Gribow, 44-901 Village Court Suite D, Palm Desert, California 92260. You can also email him or call him at (760) 341-4411. |
