SHUT UP AND KNOW YOUR RIGHTS AN EXCERPT FROM A TOAST TO SILENCE

The predominant reason people are imprisoned in our society is they talk. Why do they

talk? They just like to talk or they think they can talk their way out of a problem. Often they can, but rarely with a police officer. Theologians say it’s good for the soul. Psychologists and prosecutors say it’s because the accused wants to explain himself when confronted by authority figures. In my view, based on interviewing thousands of clients, people talk because they don’t know that they don’t have to say anything, or think they will look guilty if they remain silent. They feel intimidated in the coercive environment of being stopped and questioned. They think the Fifth Amendment’s guarantee that no person shall be compelled to be a witness against himself is something they heard about, but has no practical use or relevance in their lives. Once you identify yourself, you don’t have to speak, you don’t have to admit or explain anything, you don’t have to consent to any search, you don’t have to take any test, you don’t have to cooperate or participate in any police investigation or interrogation by speaking. When a police officer approaches you, nothing is more useful or relevant.

Even with the Miranda warnings being given, people still talk. The folks who talk screw

themselves because they don’t know they can say nothing even before or after being advised of their Miranda rights. Despite Miranda, and the Fifth Amendment, the police still get you to talk in most cases. In my view, people still talk after the Miranda warning because, as presently phrased, it is inadequate and is inconsistent and misleading on its face. Its opening line “. . . right to remain silent.” is practically cancelled out by the balance of the warning’s emphasis on the opposite of silence, the police questioning process; that questioning you and your answering is going to happen, provided you demand a lawyer and one is made available. With a competent criminal defense lawyer present, that questioning and answering process will not happen. In addition, it is not specific enough about the consequences of not remaining silent. Its language is too bland and neutral, as one would expect coming from the neutral judges who chose the words which are then delivered to you by a police officer at the moment you are being handcuffed. As you are being told you are being arrested and are stressed thinking about what’s going to happen to your kids, your job, etc., what the officer is saying to you is not sinking in. This is the moment of greatest vulnerability to police speak, and critical mistakes are then made by you.

The Miranda warning should sound like it comes from a defense lawyer because it is legal advice to the accused. Your lawyer is not and should not sound neutral. Instead of just blandly advising that anything you say “. . . can and will be used against you in court . . .”, it should emphasize the main consequence of talking. As it is now worded, it simply indicates what you say is just another piece of evidence. What you say is always the centerpiece of the case against you—the strongest evidence there is. Given its bland, neutral tone and facial contradiction, as presently worded, it is no surprise that people still talk and get convicted over ninety percent of the time. The warning should go something like this: You can and must shut your mouth now and keep it shut or you will lose. Do not answer any questions by the police at any time. Demand to speak to a lawyer, say you are remaining silent, then stop talking.

This continuing high guilty plea (conviction) rate is due to our misplaced focus on the

Miranda warning for the past half century, and the entertainment industry making its name a household word. This misplaced focus on Miranda has, in a sense, been a disservice to the public. As seen on TV, and in motion pictures, Miranda comes into play only at the time of arrest, and the warning’s opening line . . . you “have” the right to remain silent . . . clearly leaves the impression, as nearly all of my clients have told me, that the right to silence starts at the moment of arrest, and not at the time of the stop; that the right to silence is prospective only, from the point of arrest only, suggesting that you cannot remain silent before arrest, when you first encounter the police and/or the right to remain silent does not exist until the point of arrest and the Miranda warnings are given. The focus has been on waiting for the police recital of the Miranda warnings, as though what you say and do before being so warned during the interval between the initial stop and contact with a police officer and your arrest doesn’t count. It sure as hell does! It is during this interval, this portion of the encounter, that the damaging statements and test taking are made in pre-custody interaction with the police.

If you are then arrested, and in custody, this is when the warnings are hurriedly recited,

with a tone of annoyance at having to do so. Too late! The truth of the matter is that you “had” the right to remain silent from the outset, and the arresting officer’s recital of the warning to remain silent is pointless if you had not kept your mouth shut and took tests in that critical interval between the initial encounter and arrest. Once you open your mouth to speak, take tests, and admit or explain things (cooperate) in that interval, you’ve done fatal, irreparable damage to your case and you get convicted!

The correct focus should be on the Fifth Amendment right to silence, which you “had”

available at all times, and particularly at the moment of first contact with the police. To “have” the right to silence as the Miranda recital states, suggests a time and a starting point of your right to silence, which is different from “had”. This is the myth, the mirage, that Miranda is the great savior to the accused. It is not! By the time you have heard the Miranda warnings, you blew it at the beginning of the stop by the police. Its message is that your rights begin at and after arrest, which is totally false. Law and order TV tells us that our rights begin with the click of the cuffs, and this is the greatest deception of all. The great savior is silence at all times.

Whether or not you are in custody, you do not have to answer any questions, reply to any

statement, or do anything other than to identify yourself. The police want you to think that you have to talk to them. They are wrong. Whether or not you are in custody, and whether or not you

are given your Miranda warnings, the Fifth Amendment always applies. The Fifth Amendment right to remain silent and not give evidence against yourself does not go away unless you consent to waive its protection and talk. The Fifth Amendment is your absolute bottom line round-the-clock protection against the government and its agents, the police, and police pressure to talk. Miranda simply is a reminder of your rights, it does not create them. The Constitution does that. When you talk, and cooperate you get nothing in return except trouble. Don’t make the mistake of intimidating yourself by thinking that if you don’t answer and don’t cooperate, the officer will think you’re guilty or hiding something. That’s what he thinks to begin with and that’s what he wants you to think under the false notion that if you talk and provide incriminating facts, you will thereby avoid arrest. You will not.

It is during this pre-Miranda interval that the seduction, disinformation, manipulation, and

deception by the police, takes place and has its devastating effect on your fate in court. This is the interval that is not covered by Miranda, but definitely covered by the Fifth Amendment. This is when the officer puts to work his training to be either the authoritarian tough guy, using fear and intimidation to get you to talk, screw yourself, and lose in court, or the smoothly conversational “nice guy” with whom you’ve been “cooperating”, talk, screw yourself, and lose in court. Your response to either approach or technique is what determines what happens to you at the courthouse.

We have been conditioned during our formative years by our parents and our teachers, and

as adults by our popular culture to talk things over, cooperate, work out our differences by talking, and to explain ourselves to authority figures. What we have either never learned or have forgotten is when to shut up, and to whom not to talk. It’s the police. Talking to and cooperating with them is a disaster for you and your case. When you call upon the police for help, they’re great. When they call upon you, watch out! When they call upon you, nothing serves you better than silence.