One of the great protections in our legal system is protecting an individual against self-incrimination. Exercising the right to remain silent, or the lack thereof, is one of the key protections we’re going to explore when looking at a defense strategy. What a client said, and equally important, didn’t say, can make a huge difference in the outcome of a trial. The police are often hoping that, with a little prodding, a person in custody is going to make their job easier by saying things that will help in getting a conviction. The less a person says, the less they have to work with, and the more they actually have to prove in court.
A case that might otherwise take weeks and even months to investigate and prove can become an easy slam dunk for the prosecution, simply through careless remarks made to the police by the defendant.
An easy example of a less compelling legal infraction none-the-less illustrates the point. If you’ve ever been pulled over by the police while driving, you may notice the first thing they do is ask if you know why they pulled you over. The only correct answer is, “No, Officer, I do not.” It is their responsibility to tell you why, not the other way around. Unfortunately, most people will respond with something like, “I’m sorry Officer, I was speeding” or the like.
That one remark seals their case. You just admitted your transgression.
Once in custody, after an arrest on a serious charge, the police will often imply that by cooperating now, and answering all their questions, it will go easier on you later. The only way to handle that is to clearly state: “I am respectfully invoking my right to remain silent and refuse to answer any questions until I have met with my attorney.” They may get angry, and (hopefully not) even make threatening gestures, but denying anyone the right to remain silent until represented, once clearly requested by the defendant, is a violation of their civil rights.
That right to remain silent becomes magnified tenfold in a modern world of instant digital communications and video recordings that can go viral in a matter of hours. A world where our phones regularly “check us in” at various locations we visit, thereby making it pretty easy for any interested party to track movements, times, etc. You can’t really say you weren’t there when your phone says you were, especially when coupled with the Tweets or Status Updates on Facebook (also showing locations and times) confirming you were in possession of your phone.
Very often, clients will stick by their “story” when consulting with their Attorney, only to have the shock of their own words totally contradicted by this digital breadcrumb trail they left behind, a trail the police can and will follow. Defense Attorneys don’t like finding out after the fact you lied to them. It destroys the very foundation of the case they are trying to build, so a good defense attorney is going to request those types of records, double checking the facts and hoping to disprove allegations of locations and times, to ultimately reinforce their client’s version of events. Always tell your attorney the whole truth. He or she is there to defend you, not judge you.
Unfortunately, in today’s society of instant fame seeking, what I’ve mentioned is only the tip of the iceberg when discussing people incriminating themselves.
Social Media sites like Facebook have become a great tool for law enforcement to use when piecing together a crime. They are also a medium they can be proactive in, setting up fake profiles to lure child predators, etc. There are numerous cases being reported on the news of criminals being caught as a direct result of their own social media activity.
In some cases, in the extreme.
People on probation may be posting they partied it up last weekend, only to get a call from their probation officer to stop by the office and share some urine with the State. This actually happened to rocker Courtney Love after a live TV appearance in which she was quite clearly inebriated.
In that respect, social media is very much like having our own little TV show. What we think is cute, or cool, or funny, may come back to haunt us in a variety of ways. For the criminal, it can make the burden of proof a real burden for their own Lawyer.
Take for instance, the illegal marijuana grow operator who uploaded a YouTube video showing their illegal grow operation. It’s a little tough arguing you weren’t involved when you host a guided tour video online.
Or consider the jewel thief, who just couldn’t resist snapping some selfies with their newly acquired bling. Better have receipts for those gold and diamond chains, my friend.
People posting stolen merchandise on Craig’s List, photos of illicit activity that later turn up at a job interview, or worse, a court hearing. The list of Internet self-incrimination’s is a long one. One teen murdered his friend, and then posed for selfies with the body, which he then put online. I can’t decide which is worse; his megalomaniac psychopathic behavior or his blatant stupidity.
I can tell you this much: After seeing those pics, I wouldn’t want to try to defend him, short of a plea for insanity.
Remember, there’s a plea for crazy, but there is no plea for, ‘stupid’.