The government may not compel you to become a witness against yourself in its effort to convict you. This prohibition is limited to testimonial evidence. They can:
However, they can never force you to speak.
This is not always an easy right to assert. Unless you have a military or CIA career, it is neither natural nor easy to resist the exhortations of an agent of the state wearing a badge and bearing a gun, especially when they are being nice. This is not the guy at Walmart changing your oil. There is always a subtly coercive and intimidating environment that accompanies any interaction with law enforcement.
"But I have nothing to hide!”
Really? How do you know?
For example, say you are walking around Target and in a pure slip-of-mind you put a stick of deodorant in your pocket. You had no intention whatsoever to steal it – you just forgot you left it there. How would you trust a police officer, called in by Target Security, to not find “intent” where you know in your heart of hearts you had none? You don’t want it to become a question for the Jury or a Judge because at that point you are charged or, as they say, south of the V.
“I want to cooperate”
Cooperate with a lawyer representing you, not a police officer who is interviewing you. Their interests are not your interests. You are helping them, not you, and that is a mode of analysis that will never fail. The most critical stage of any criminal prosecution is the beginning. By agreeing to openly speak to an agent of the state, you considerably increase the likelihood of the state convicting you.
The most disingenuous words you will ever hear from law enforcement is "you can help yourself here" ("Why Grandma what big teeth you have!" "All the more to eat you with my dear!").
Invoking your right to remain silent cannot be used against you, so keep your mouth shut for your own sake!
A lawyer’s effectiveness in any given case is rooted in the facts of the case. Therefore the oft applied win-loss mentality, while relevant, is not entirely revelatory when it comes to defending a criminal prosecution.
When I tell a client I think they have a good case that means I think I have a shot at victory.
When I tell a client they have a challenging case, it means I love a challenge and taking on a case that others are quick to write off. That is simply how you can distinguish yourself in this industry.
Don Neuwirth, a student at Boston University in the early 70's once described how to play pinball saying it was not the meat, but the motion. That is somewhat akin to the finesse required to the conducting of effective criminal defense.
This is how it works. Society gets jazzed up about drunk driving or deadbeat dads or teens who text while driving or who skateboard aggressively near Publix.
An assembly of underemployed political hacks who get about $20,000 a year, free stamps and limitless lobbyist-provided shrimp (that would be the Florida Legislature) pass a law in response thereto. These laws are often guilty of "overbreadth" because they are so poorly considered and drafted they often impinge unfairly on innocent citizens.
DUI Laws Across the Country
Why do states like Pennsylvania give a first time DUI offender a chance to keep the conviction off his or her record when Florida makes a conviction mandatory for all first time DUI offenders? Is that fair?
Why is the spirit of double jeopardy trampled with two separate and usually consecutive license suspensions? Why does the DMV suspend your license right away? Whose bright idea was such government duplicity?
Why is it a crime to refuse to submit to the breathalyser the second time?
Why does government want to let the lobbyist for Publix sell beer at every corner, give Tax Breaks to Seagrams, Outback, and Anheuser Busch, go "laissez faire" on the big and powerful but pulverize the hard working men and women of Florida who find themselves pulled over after having drunk from the cup of the protected? Why do the same folks who do not trust government have no problem letting the same government execute people?
Innocent until Proven Guilty
A courtroom belongs to the people, not the flavor or vogue or cause of the day. Every citizen should be treated with respect, not presumed guilty and subjected to a cynical government.
I even the playing field and cower to neither Judge nor prosecutor. I like to remind both of the relationship my client and I enjoy with them, and that is one of constituency.
Voila! The Greeks observed that there is nothing new under the sun. The poignancy of Shakespeare is universal, the Beatles are timeless and Cheryl Crow will be listened to with awe in fifty years.
What am I saying? It is this.
Very little of what I present here is not something that has not been observed in some form by some other colleague, mentor, professor or admired writer/thinker.
The Law is a seamless web! Hard cases make bad law. Criminal Law involves the violation of conformity to the minimum requirements of a civilized society. My favorite adage (and also the official mission logo of my law firm) holds that process affects result. I took that from my first year property professor at Boston College Law School, Mary Ann Glendon, who is one of the most frighteningly smart minds to which I have been exposed.
Children in New Guinea watch no television and have superior problem-solving skills than those of their American contemporaries.
I love nothing more than a case that crawls across my desk rife with bureaucratic incongruity and contradiction, hobbled by a seeming information void and very vexing to a troubled hardworking client who plays by the rules and has done everything expected but can't get that license reinstated, or can't get terminated from probation. That is where and why I go to work. Begin with the end in mind as author Stephen Covey advises. Comfort, advise, inform, and protect the client. Always.
Joseph T. Hobson is a Criminal Defense attorney specializing in DUI charges in Clearwater, Florida.