WHEN SILENCE IS NOT GOLDEN

 By Mary de la Peña, Esq. author of A Layman’s Guide to Criminal Defense

            

Recently the Supreme Court Jesters, I mean Justices, turned on its ear the Miranda warnings and the “right to remain silent”  in a ruling that says if you don’t deny outrages statements it can be used against you—unless you’ve told the investigators you want a lawyer. Evidently staying silent is not enough!

          What???? 

 It’s called an “Adoptive Admission”—failure to deny an outrageous allegation is the same as admitting you did it.  Crazy, huh? After all, you’ve always been told to “shut up”, right? 

Well, here’s how this little piece of legal craziness is used:

PRETEXT PHONE CALLS:  The cops have the alleged victim of a crime call and request you apologize or “live-up to what you did”.  If you do not immediately deny what is being said the prosecutor can use that in court to prove that you did, in fact, do the crime!

COPS ACCUSE YOU: I love this one. The cop on the street accuses you of some crime, before giving you Miranda. If the accusation is outrageous enough—like “tell me why you murdered these four people”, and if you don’t immediately deny it, your failure to deny the accusation can be used against you in court to prove that you really did do the crime.

THE DETECTIVE ACCUSES YOU: This one is just as crazy. You’ve been asked to come to the station to “clear up a matter”.  After sitting in a interview room for at least a half hour, the detective comes in, sits down, faces you, says “you know you are free to go at any time, So, listen, Joe, we’re here to figure out why you molested that little girl”. This is said before Miranda warning is given. You are expected to get angry and deny, deny, deny, then ASK FOR A LAWYER! If you don’t deny, that failure to deny can be, and will be used against you in court.

Is this legal?

Evidently it is. Again, it is called an “adoptive admission” meaning if you don’t do something to deny what is being said, it can be used against you. The theory is that most humans will get angry if accused of a crime they did not commit. Thus your anger is expected, and if you don’t get angry, voilà—you are  guilty!

So, what should you do if faced with a similar situation?

Say, “I don’t know what you are talking about!” then hang up the phone, or demand a lawyer—then SHUT UP! 

Don’t get sucked into a shouting match, or call the person a psycho, or tell the detective to “f*** off”. Just say, “I don’t know what you’re talking about, and now I want a lawyer”. Everything after you say, “I want a lawyer” cannot be used against you. But, still, after asking for the attorney, BE QUIET.

Mary de la Peña, esq. has more than 28 years of experience practicing criminal law and is a name partner in Southern California’s prestigious De La Pena Law Office.

For more information on your Constitutional rights or if you have a question, call the De La Pena Law Office to order your copy of A Layman’s Guide to Criminal Defense.