I have blogged on this subject many times. It is a long but very important Blog article. I have told my readers in Jackson, Clinton, Hinds County, The City of Madison, Ridgeland, Madison County, Flowood, Richland, and Rankin County, MS, over and over to invoke their right to remain silent when law enforcement attempts to question them. Everyone (even police officers accused of wrongdoing) have a right under the Fifth Amendment to remain silent when approached by law enforcement and sought to be questioned. This right protects YOU and in some ways it protects YOUR family because if you get convicted of lying to the police and go to jail, what help are you to your family? Mr. Bonds should have followed this advice.
Let me make one thing clear. I am not against law enforcement. Good law enforcement helps communities. Good law enforcement make good lawyers and good lawyers make good law enforcement. Good attorneys also serves as a “checks and balances” over the abuse and encroachment of law enforcement on important civil rights. Up until recently most of us have lived in a economically prosperous and generally free time in our society. This may not be true for our African American citizens and friends who fought their way through the Civil Rights Movement. But compared to other countries we see in the news it is easy to want to fall down to the ground and kiss the ground in American.
The rights we have enjoyed for so long came at a high price for the colonists unhappy with English Rule. That has been so long ago most people do not fully understand why the Bill of Rights was specifically enumerated into the U.S. Constitution. I don’t have the time to give a history lesson but you can find one here. It is enough to say that our Bill of Rights is unique and I think has made us grow into one great, free country.
Now we come to the meat of the argument. Why would anyone not want to cooperate with law enforcement? Can that be good, or right? Is it un-american to refuse to cooperate? The answer is no. It is not un-american. It is American to have, accept, and use the rights given to you in the Bill of Rights. And one of these rights is the right to remain silent and not give any evidence to incriminate yourself.
What exactly does the Fifth Amendment right to remain silent mean? When a officer comes to your car do you just “zip it” like the teacher use to say to us in school when we were talking? No that won’t work. Whether you are in your car or walking on the street a law enforcement officer may approach you and engage you in a conversation. For example, if you are in a car a police officer is not entitled to stop you just to ask what you are doing. They can stop you if they have reasonable suspicion a crime has been committed and reasonable suspicion you may be the one who committed it; they can stop you if they witness a traffic violation; or if you come up to a roadblock.
There are rules for roadblocks but we don’t have the time to get into all those now, and they are technical.
Once you have been stopped in your car the police can ask for your license, registration, and insurance card. If you don’t have these three (3) things ready and in a place easy to reach then you are asking for problems. When a driver has to look for these items the police quite often use this as an excuse to say the citizen was nervous and could not find their identification. Once you provide these the officer is permitted to talk to you about anything he wants but you are not required to answer questions that are interrogating you. For example if the were to ask what you are doing at 2 a.m. in the morning, you could answer just coming home from visiting a friend or you could say handling personal business. (Note: If you have been drinking and driving you need to read the posts on this Blog that pertain to that topic.).
Once you feel the officer is getting to personal or investigating a crime you have the right to invoke your right to remain silent. You also do not have to allow a search of your car. In my opinion, and I mean this seriously, I see far too many examples of police asking to search people’s cars without any reasonable suspicion. The police just want to look around in your car and snoop. You do not have to consent to a search no matter what the officer says. There have been prior Blogs on this subject on this site. As an important note the courts have said that if a police officer smells maijuana in your car that gives him reasonable suspicion to conduct a search. So if you are a marijuana smoker, and you ride around and smoke in your car: YOU HAVE BEEN WARNED.
Always remain calm and be polite to police officers. They have hard jobs to do and the jobs are stressful. I also believe they are under-paid. But these stresses and the low quality of some applicants leads to men and women in law enforcement who have no concern for legal rights and civil rights. I don’t mean all police, but a significantly sizeable portion of the population feel this way. If you don’t think so look at some of the articles around the country. Many of these articles can be found at The Coxwell & Associates Facebook Page.
Okay, back to Barry Bonds. Mr. Bonds was convicted of making false statements to law enforcement in regards to performance enhancing drugs. From what I can tell he made these statements at a time when he had the right to remain silent under the protections of the Fifth Amendment. What I have seen happen over and over again is an individual gets found not guilty of what we call the substantive charges that law enforcement was investigating and guilty of lying or making a false statement. This would not have happened if the person had invoked their right to remain silent. In addition to the situation with Barry Bonds, baseball legend Roger Clements is also charged with lying to Congress. As a lawyer with over 30 year’s experience helping people I just scratch my head in amazement at the people who give statements when they have a right to remain silent.
It is a common policy and tactic of the prosecution to try and obtain as many charges against the focus of the investigation as possible. When evidence may be weak on the substantive charges, then the law enforcement and prosecutors like to have a false statement or lying charge so they can point to the jury and argue, “see there, if the person lied to investigating officers, he must have been trying to hide something-i.e., guilt.”
Good people make mistakes. Good people sometimes do bad things. In the U.S. the legal system has a tendency to be unforgiving and a criminal record can follow a person the rest of his or her life. The Federal System has no expungement laws for adults. Mississippi has a very limited expungement law. By expungement I mean the right to clear or wipe out your criminal record. (The Coxwell & Associates Blog has covered this topic). Do yourself and family a favor. If you are approached by law enforcement invoke your RIGHT TO REMAIN SILENT. Remember the legal system will permit law enforcement to lie to you under some circumstances, but if you make a false statement, it is a crime. Contact an experienced criminal defense lawyer and consult with him or her before you make any statement. Otherwise, you might end up getting charged with a crime of lying to law enforcement.
Merrida Coxwell is the managing partner of Coxwell & Associates, a botique law firm focusing its attention in the areas of criminal defense, serious personal injury, financial fraud, consumer bankruptcy, and some general, limited civil litigation. Mr. Coxwell has been sought out by judges, lawyers, doctors, corporated owners and executives, teachers, and many other individuals who find themselves in trouble with the law and needing top notch, caring but aggressive advice and representation.
Disclaimer: This blog is intended as general information purposes only, and is not a substitute for legal advice. Anyone with a legal problem should consult a lawyer immediately.