You Have the Right to Remain Silent… so SHUT UP

I have many grievances with how our criminal justice system is portrayed on television, but one of the few good things that it has done is emblazoned a person’s right to remain silent in the minds of even a casual viewer. The “Miranda Warning” came into existence in 1968, when the Supreme Court decided the case of Miranda v. Arizona. In that case, the Court held that in order to protect a person’s right to remain silent and in order to make that right meaningful in the real world, suspects had to be advised of that right before any interrogation that takes place in a “custodial” setting. Thanks to the ubiquity of police shows on TV, many of us can recite the four parts of the “Miranda Warning” from memory:

1) You have the right to remain silent.

2) Anything you say can be used against you in court.

3) You have the right to have an attorney present during any questioning.

4) If you cannot afford an attorney, one will be appointed free of charge.

In the early 1990’s, the Supreme Court had the opportunity to revisit its decision in Miranda, and many suspected that what was then a very conservative (right-wing) Supreme Court would undo the requirements of Miranda.  However, the Court decided to uphold Miranda; in doing so, the Court referenced the fact that so many people could recite “Miranda Warnings” from memory (after hearing it on television so many times) as a sign that the warning itself was an integral part of our right to remain silent.

And yet, Miranda warnings rarely stop people from confessing. I once had a case in juvenile court where my client was accused of possessing a stolen car – this particular charge requires actual knowledge that the car was stolen. I opened the file to find that my client was merely a passenger, and that the car had no damage to the steering column or ignition that would advertise to the world that the car was stolen. Being pleasantly surprised at how defensible this case was, I then turned the page to find my client’s detailed, lengthy, wholly unnecessary confession to having stolen the car, doing “doughnuts” with it in a parking lot, and then letting his friend drive shortly before being spotted and arrested by the police.

This kid was hardly an isolated example; a surprising portion of my clients confess before consulting with an attorney. I have no idea why they do this. Overall, it’s the sex offenders who are the most likely to confess to everything. Despite Miranda warnings and a spinning tape recorder placed on the table in front of them, a typical client accused of a sex-offense will go on and on about how he did indeed have frequent rendez-vous with the pre-teen that he met on Myspace, but then insist that everyone was ok because it was consensual (note: NOT A DEFENSE).

Sometimes police get people to confess by lying; for example, telling a suspect they found DNA at the scene, a fingerprint on the weapon, and/or a confession letter from a co-defendant. But this is fairly rare; usually the confession comes with only the slightest provocation. I can’t figure this out. My personal theory is that many of my clients come from religious backgrounds and are under the gravely mistaken impression that confession is good legally as well as spiritually. That is, if they confess, the system will show them mercy as a reward for their honesty (note: NOT TRUE).

Even when clients give statements that they think will get them out of trouble, it is usually better for them to remain silent. Often, they talk before knowing what the evidence is against them, and so they blab before they find out that the store surveillance camera/blood trail/three eyewitnesses completely contradict their self-serving malarky. Many times, I find myself thinking that I could have come up with a better defense than my client’s implausible tale, and that it would be easier if they would just STAY SILENT and let me do the talking.

It’s not that whatever you say can be used against you; it will be used against you, whatever you say. Don’t take my word for it; law enforcement experts agree that there is almost nothing that a person can say post-Miranda warnings that will help them, even if they are completely innocent.

Enjoy this informational video; and remember if you’re ever arrested, that since you have the right to remain silent, you should really just stop talking.

Respectfully Submitted,

Norm DeGuerre

What do you mean my son is a gang member?

The following is a faithful paraphrase of what I told my juvenile client’s father this morning in response to his protests that his son was not a “gang member.”

Sir, I understand that this is your son’s first time in court on a juvenile case. I also understand that your son is not involved in an organized criminal enterprise simply because he and his friends beat up another kid for wearing the rival gang’s colors. Trust me, I would never label what your son and his friends did as “organized” in any way.

Your son is not a member of a gang; he’s the member of a group – and kids LOVE group identity. High school is even worse now than when you and I were there. Kids still worry about being liked by their peers. They want acceptance, but not from their parents. They want approval and support, but not from adults. Also, high school is DANGEROUS today, much more so than when we were kids. Three decades’ worth of poverty and urban decay have created an entire subclass of high school students who fear for their physical safety at the hands of kids whom they have to see every day in school. They don’t want safety from the police because the police can’t give it to them. They don’t want safety from the school administration because their actions often make things worse. One well-meaning adult can have a devastating effect on a child’s equilibrium with regards to safety and security. In short, teenagers want even less to do with adults now than we did when we were teenagers. But now they don’t just need social acceptance, they need safety and economic opportunity.

And so how do you expect a kid to react when he’s told that so long as he wears the same color as another group of kids, draws the same symbols on his binder, and shares the same hatred for a rival group, that he will have that group’s loyalty and support? The feeling must be intoxicating.

Now some of these kids are, in fact, organized into criminal enterprises. Some may even get orders from friends or relatives who are, in fact, involved in the prison gangs. They may even receive written orders that the prison gang leaders write on scraps of paper in their own urine. And after these leaders bribe prison guards to smuggle them out and these notes find their way to the streets, some kids may actually carry those orders out. However, this is a tiny fraction of the kids who claim any sort of gang affiliation.

But once boys like your son start aligning themselves with the handful of kids who are parts of these gangs, the state machine takes over. Every kid who yells “Norte” during a fight is believed to be part of a disciplined, quasi-military enterprise. The DA then charges these kids with “strike” offenses. When they turn 18 or 19, they pick up their first felony. Because of their strike offenses, they go away to prison for years and years. Once in prison, they join the actual prison gangs that the police claimed they were affiliated with in the first place. Eventually, they return to the streets with faces full of prison tattoos and no source of support or approval outside of the gang.

In short, the State wants to jump your son into the very gang they’re accusing him of having joined.

The good news is that the DA didn’t have the information that I have when he decided what to charge your son with. They don’t know about the victim’s concussion, so they won’t add the “great bodily injury” enhancement. Although I am more than a little annoyed that your son decided to waive his Miranda rights and brag about his gang “affiliations” to his probation officer, the District Attorney did not have any of your son’s boneheaded statements before deciding what to charge him with. Therefore, they didn’t have time to add the “gang” enhancement.

I agree that in an ideal world, your son wouldn’t have to plead to a felony assault charge that will prevent his juvenile record form being sealed; a kid should be allowed to make one non-fatal screw-up without having it hung from his neck forever. But none of that compares to having a strike on his record. If your son pleads TODAY, the DA won’t have time to aggravate the charges. Please, despite the fact that you met me only ten minutes ago, you need to trust me on this.