It’s an old criminal lawyers’ joke: The client has confessed, and during the first interview, the lawyer asks why. I knew I had the right to remain silent, says the client. I just didn’t have the ability.
Today I ran across a Robert Reich diatribe against recent court decisions making insider trading cases more difficult to prove. (It is my view that insider trading should be legal, but I’ll save that discussion for later.)
Among the many comments on the Reich article were a substantial number suggesting that the insider trading defendants whose convictions were overturned on appeal were male, and that this must reflect a bias against women, since Martha Stewart went to federal prison, don’t you know, for insider trading.
Wrong. The government did not pursue a criminal insider trading case against Martha Stewart. Instead, she was indicted for, and found guilty of, conspiracy, obstruction of justice, and two counts of making false statements to federal agents. As they say, it’s not the crime; it’s the coverup. Lengthy interviews prior to arrest are common in white-collar criminal matters. When she spoke with federal investigators, Martha Stewart tried to explain away the insider trading issue, and a jury ultimately decided that in so doing, she lied. Lying to a federal agent is a standalone crime which does not require the person being questioned to have been arrested, to have committed any preceding crime, or to be under oath.
The United States Supreme Court held in Berghuis v. Thompkins, 560 U.S. 370 (2010), that in order to invoke the right to remain silent after arrest and after the Miranda warning, a criminal defendant must explicitly state that he is relying on that and may not do so by merely remaining silent. Otherwise, any later statements may be used at trial.
A recent California Supreme Court decision implied that this Fifth Amendment right and the “right to remain silent” aren’t the same and held that silence in certain circumstances may be admissible as evidence of guilt. In People v. Tom, S202107, Defendant Richard Tom sat his girlfriend’s car and in the back of a police car for two hours after the car he was driving broadsided another car, severely injuring two persons and killing another. He was later read his Miranda rights after being taken to a police station for alcohol blood level testing. During this course of events, Tom never inquired as to the health of the accident victims. The Court held that this silence could be used against Tom by the prosecutor: “[U]se of a defendant‘s postarrest, pre-Miranda silence is not barred by the Fifth Amendment in the absence of custodial interrogation or a clear invocation of the privilege. . . .”
U.S. citizens hold the Fifth Amendment right not to be compelled to testify against themselves at all times, unless the right is waived. If you desire to invoke that right and your right to remain silent, you must clearly say so. But if you lack the ability to exercise these rights during any contact with investigators or police officers, make sure that every statement you make is undeniably true.