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The Right to Remain Silent: Use It or Lose It

What do public figures from Richard Nixon to Martha Stewart all have in common?

They lied.

But, they didn’t lie to just anybody. (I mean that wouldn’t really distinguish them from most other public figures now, would it?). No, they lied to government officials during formal questioning. Thus, they exposed themselves to allegations of perjury, obstructing a government agent, fraud and perhaps much more.

In some jurisdictions, lying about crimes committed by others can make you an accessory after the fact. Conspiracy charges might follow. Even RICO cases can stem from organized collaboration to defraud governmental officials resulting in the obstruction of justice (18 U.S.C. § 1961-1968).

And, for the most part, all these famous folks had to do was listen to their lawyers. Under the Fifth Amendment to the U. S. Constitution, and comparable state constitutional provisions such as Article 1 Section 9 in Washington, we all have a right to remain silent when being questioned by government agents. This is a fundamental right under the Bill of Rights. Right up there with the First Amendment, which lets us say things, the Fifth Amendment lets us not say things.

This past week alone we saw two perfect examples of public figures who had been led by their agents or political advisors, not their criminal defense attorneys: Roger Clemens and Rod Blagojevich. An experienced criminal defense attorney knows that it is easy to try to talk your way out of something. It is hard to remain silent in the face of public pressure. But it’s not just public officials; ordinary citizens face the same dilemma every day.

Many of us studied the famous Milgram experiments in college. The ones where ‘normal’ college kids were cajoled into shocking imaginary victims, motivated by nothing more than the fact that the experimenters wore white lab coats, making them appear as authority figures. We naturally defer to authority.

So, when a police officer pulls you over for a traffic stop, you naturally want to talk your way out of it. My advice? Remain silent. Easy for me to say, I know. However, no matter what, never lie. “It is better to remain silent and be thought the fool than speak and remove all doubt.” – Abraham Lincoln.

In the next several installments, we explore how two public figures recently ‘removed all doubt’ all the way to possible prison terms…