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Invocation of Your Right to Remain Silence

Anyone involved in the criminal justice system – be they prosecutors, police officers, defense counsel or judges – understands the importance of remaining silent prior to going to trial, even in cases where the eventual accused may be entirely innocent of the charge.

Years of living and working within the system teach participants that only the fool speaks to a police officer or investigator without the protection of counsel or, in many instances, a formal immunity agreement.  And so when a defendant comes to court, and the jury is told by a testifying officer, in response to the prosecutor’s question, “Did the defendant sit down with you for an interview?” that the Defendant declined this kind offer, everyone in the courtroom, except the jury, understands that the Defendant exercised not only a valuable right, but probably made a wise decision.  It’s also a decision they would all make if they were confronted with a criminal investigation.

Lay people – by which I mean, people who have very little or no experience with the criminal justice system – are often perplexed.   This is especially the case when I meet with someone who is facing an investigation, and who insists that he or she did nothing wrong.  They believe that if they could only just explain to the officer the circumstances behind their actions – because they are, of course, innocent or at least, not really guilty – they could escape the nightmare that is about to unfold.

And so they want to speak.  They want to tell their story.  They want to confide in a sympathetic officer who might be willing to let this matter slide.

It never makes sense to speak with a police officer except with the advice of counsel.  And in most cases, even when counsel is hired, it doesn’t make sense to speak to police.  If you’re guilty – by which I mean, guilty of anything – then speaking to the police officer gives the officer almost all the evidence he needs to convict. If you’re not guilty – by which I mean, you’ve never done anything criminal culpable in your life, then you are from a magical land not called “The United States of America.” Either way, speaking to police without the advice of a lawyer is almost always bad, and many times catastrophic.

Jason Young understood that in 2006 when he was approached by Wake County Sheriff’s Deputies investigating his wife’s homicide. He did not speak. Whether this was part of some grand plan he had to kill his wife and avoid a conviction, or whether this was because he just understood the consequences of speaking as the husband of a dead woman, I cannot say.

In 2011, he came to trial. Much was made by the prosecutors when he did take the stand that this was the first time he had spoken in public about matter. He explained that he had been advised by friends, family, and his attorney not to give a statement way back when to investigators.

Importantly, by not speaking, whether he killed his wife or not, he denied the prosecutors a valuable tool: the inconsistent statement.

Everyone in the system knows that when someone speaks about an event on multiple occasions, he will invariably give different statements. Prosecutors focus on the inconsistencies, identifying them to jurors as signs of lying.

Jurors – even in though in their personal lives they have experience telling slightly different stories in spite of the best of intentions – seem to forget that peoples’ stories can change. They are susceptible to the prosecutor’s canard that every statement must be completely consistent, or else the person must be a liar.

Jason Young’s first statement in 2011 was good enough for most jurors in his original trial. The majority voted to acquit. Judge Stephens ruled it was a mistrial. And so a second trial was held in 2012. This time the prosecutors had a prior statement, which was Young’s testimony in 2011. And, while Jason Young did not testify in his second trial, the prosecutors played his prior testimony, and then impeached it with “new” evidence, which would be the fact that, wisely, he did not contest a wrongful death civil suit and therefore, because of his failure to respond, was deemed to have “admitted” the allegations therein.

The second jury convicted him. He was sentenced to life in prison.

The North Carolina Court of Appeals heard arguments today about this issue, among others.



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