Schwartz & Powell

“I Don’t Want to Talk”: Police Interrogation

by Steven D. Powell Attorney at Law

Most people believe their rights under the Fifth Amendment to remain silent and not allow police interrogation must be respected by law enforcement. After all, the Fifth Amendment is the law so why would law enforcement try to break the law by violating Miranda? That doesn’t make good common sense. Don’t we want to ensure the police don’t browbeat citizens suspected of criminal conduct? Don’t the police want to obey the law in conducting their business?

Most people believe the judicial system and judges, should law enforcement officers interrogate one who has asserted his right to remain silent, will enforce one’s Fifth Amendment rights and cure law enforcement’s violation of the law by suppressing or excluding from evidence statements made after invoking the right to remain silent. If the police don’t respect our right to remain silent, surely the courts must respect if not revere the Fifth Amendment right to stand silent. Surely the courts wouldn’t allow the prosecution to present as evidence “statements of the defendant” obtained in violation of his right to remain silent.

Unfortunately, this isn’t so. The Miranda Rule based on the Fifth Amendment privilege against self-incrimination is far more honored in the breach than the observance. I knew this when I taught Evidence at the Ventura County Sheriff’s Academy as a Ventura County Deputy District Attorney. Now that I have practiced law as a Ventura criminal defense attorney for more than thirty years, I know it all the better. The Miranda Rule has been swallowed by the exceptions and distinctions carefully crafted by judicial activist courts anxious to give law enforcement a leg-up in their “enterprise of ferreting out crime.” The courts haven’t killed the rule entirely but decision after decision has seriously wounded the right of one in custody to stand silent in the face of skilled police accusatory interrogation.

Some thirty years ago the United States Supreme Court green lighted continued interrogation of a suspect even though he had explicitly invoked his right to remain silent. After he did so, the police okeydoked the suspect into making statements later introduced in court to impeach his testimony, that is, attack his credibility at trial to show him a liar and therefore guilty. The Supreme Court said it was okay to use his statements obtained in uncontroverted violation of the Fifth Amendment to impeach him even if inadmissible in the prosecution’s case in chief.

All the police trainee students knew this case when I taught them about it thirty years ago. They graduated knowing if they continued talking to a suspect when that suspect invoked his right to remain silent, the suspect’s statements would be admissible in the prosecution’s rebuttal case, in trial attacking the defendant’s credibility to convict him. All across the United States police trainees were taught about this Harris case exception to the Miranda Rule and, while I don’t have the stats, here in Ventura County criminal defense we see more often than not the defendant’s invocation of his right to remain silent is followed by continued custodial police interrogation. I suspect this is a nationwide practice for police because the United States Supreme Court told them they could do so.

This is but one of the many ingenious and one might say intellectually disingenuous ways in which the police and the courts end run the right to remain silent. At Schwartz & Powell, we are wise to these ways and are diligent in trying to exclude illegally obtained evidence such as admissions and confessions obtained in violation of the privilege against self-incrimination contained in the Fifth Amendment to the United States Constitution.

If you or a loved one is charged with any criminal case, you need the services of a Ventura criminal defense lawyer to analyze the body of evidence amassed by the police and prosecution. You need lawyers who know when a Motion to Exclude constitutionally invalid evidence should be made. Schwartz & Powell has made many successful Motions to Exclude constitutionally infirm evidence over the years. On a daily basis we review the reported decisions on such matters and have done so for over thirty years. We maintain a fully staffed "state of the art" office and have both computer and printed resources at our fingertips to research and produce Motions to Exclude. The prosecution will be ready. Will you? Call us. Experience matters.





The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.