Is The Right to Remain Silent on the Way Out?


I am writing this blog not only for our clients in Hinds, Rankin, and Madison Counties who might be questioned in a criminal case, but so everyone across Mississippi who may be questioned understands their legal rights.

The Fifth Amendment to the United States Constitution protects a person from being forced to provide evidence to the government for their own prosecution. The Amendment states:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Since the very first days of our country the phrase “nor shall be compelled in any criminal case to be a witness against himself” had to be interpreted or given meaning by the courts. What did this mean? Did it mean that a person did not have to testify? Did a person have to provide physical samples like blood, hair, hand-writing? What about documents, did they have to be provided to the government?
For years after the passage of the Constitution the U.S. Supreme Court handed down decisions telling the country what could be compelled from a person and what could not. The various decisions are fairly complex but as a general rule the Fifth Amendment protects a person from having to provide the government verbal statements that can be used against the individual in court.

It is fascinating to look back at the history of the Fifth Amendment. Up until the mid-1960’s the Fifth Amendment did not even apply to the states and did not apply in police interrogations. Does that shock you? We all understand now that the Fifth Amendment applies to all custodial interrogations, but for almost 200 years the Fifth Amendment simply meant that you could not be compelled or forced to give testimony by legal compulsion. The police could question you without telling you about your rights and since the police could not force you to talk, it was not believed that the Fifth Amendment applied. Fortunately that changed and another great change came onto the legal environment in the name of Miranda v. Arizona, 384 U.S. 436 (19660.

The Miranda decision made a significant change in the law of interrogations. First, the Court held that the Fifth Amendment applied outside of court proceedings to custodial interrogations. Second, the Court held that custodial interrogation could be intimidating and before a person could be questioned while in police custody he/she had to be given what has now known as the Miranda Warnings. It is important to note here that custodial interrogation is defined as those times when a person is taken into custody against their will or when the person reasonably believes they are not free to leave based on the surrounding facts. So, a person can voluntarily go do to the police department and give a statement. A person can be approached by law enforcement on the street and voluntarily give a statement. The police can come to your home and if you invite them in and give a statement, it may be used against you. In each of these circumstances if you give a statement it can be used against you. As a practical matter police almost always give a person their Miranda Warnings even when the person is not in custody. The police do this to “play it safe” and avoid a person later arguing they believed they were in custody and were not given their Miranda Warnings.

I highly recommend that any person whether in custody or not invoke their Fifth Amendment right to remain silent. If you are the target of an investigation invoke your right to remain silent and consult a lawyer. If you are a subject of an investigation exercise your right to remain silent and consult a lawyer. If you get stopped on the street, in your car, or if you get a visit from police asking your questions or asking about your family, invoke your right to remain silent and seek legal advice. Do police like it when a person exercises their right to remain silent? No they do not. But when a police office is in trouble, they quickly assert their rights and they know them well. Also, in many jurisdictions the police unions have provisions in their contracts prohibiting internal affairs from even talking to a police officer after the officer is involved in a shooting with a citizen. The police argue that the event is too traumatic and the police needs time to consult with a representative before giving a statement. Well, being questioned by the police is traumatic for the general public-the ordinary man or woman on the street-so why shouldn’t you also exercise your rights and speak to a lawyer before you talk to the police.

Mississippi has a Constitution also and in that document there is a phrase very similar to the Fifth Amendment. I won’t go into detail in this article about the Mississippi provision dealing with the right to remain silent. You should note that Mississippi is bound to accept the rulings of the Federal Courts when the Federal Courts interpret the Federal Constitution. However, the Mississippi Supreme Court has the right and authority to interpret the Mississippi Constitution in such a way that it provides its citizens greater protection than the Federal Constitution.

I decided to write this blog article because I recently read an editorial by former New York Mayor, Ed Koch. It was Mr. Koch’s opinion that the Miranda decision was useless and unnecessary. I quote to you just a portion:

I have never understood why the Miranda rule was ever imposed by the U.S. Supreme Court. A significant number of people committing crimes want to confess their guilt. Why in the world do we want to inhibit them from doing so? Even where the Miranda warning is provided, there are large numbers of putative defendants who will proceed to confess their wrongdoing. Isn’t that good? It certainly is good for society. Of course, if the confession is forcibly obtained – physical duress in any form – it should be excluded. But if voluntary, why not use it in the trial that follows? I have always believed the supporters of maintaining the rule do so because they believe it is unfair that because a smart criminal would never confess, whether or not they were warned under Miranda, we are taking advantage of the less intelligent or less informed criminal who gives in to the normal impulse that many people have, which is to get their guilt off their chest and confess to the comforting police officer who tells them their confession and cooperation could help them at sentencing.

This is an interesting opinion. I guess it is to me because I have grown up as a lawyer knowing the Miranda Rule and respecting that it provides the ordinary citizen some protection against oppressive police conduct. Of course some police officers find sneaky ways to get around the Miranda Warnings. I don’t think however Miranda should be abandoned. I would hasten to point out that when the Miranda decision was first handed down, it only passed and became law by one vote of the U.S. Supreme Court. The ruling was 5 judges for the decision and 4 against the decision. The majority won and ruled. Over the years as the U.S. Supreme Court changed, so were changes made in the Miranda Rule. I think that we could easily see the end of the Miranda Rule one day but I hope not. Until that time remember what I have written time and time again: When in doubt demand to speak to a lawyer before you speak to law enforcement. It is your RIGHT. And, anything you say, even if you are told it is “off the record,” can and will be used against you. Use your rights if your need to and come to speak with us.

Merrida Coxwell is AV rated by Martindale Hubbell, an organization that independently rates attorneys for skill and ethical conduct. He has been listed for over ten years as one of the best criminal defense attorneys in the country. Mr.Coxwell has dedicated his life and career to protecting the rights of individuals charged with crimes.

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.

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