I Am Learning Way Too Much About The Law

OK, so the last few days I've been relatively quiet due to my small little family emergency. Essentially, someone forgot to think and decided it would be fun to run their mouth. As a result, they will be learning all about our justice system from the inside, which is not exactly the way that I would have liked it to happen, but no matter, we have to deal with the situation at hand.

Now the offense itself is not a big deal, well it is to us, but not to the system. We're not talking about murder or theft or anything severe like that. It's basically a serious traffic offense (in which there was only property damage). In fact, had the newly minted defendant kept their mouth shut this probably wouldn't have even gotten this far. But, as usual with most teenagers, their mouth was their worst enemy.

So, for the last couple of days, my other half and I have been trying to figure out how to approach the criminal trial coming in mid-October. Along the way, we have been debating the reason for needing a lawyer. And it has, for me at least, become an intellectual exercise in figuring out exactly what the teen's rights are in court.

My other half believes that the Miranda Rights "You have the right to remain silent" section indicates that the defendant can use a lawyer to respond to every single question, i.e. that they would never have to open their mouth for anything (which would probably be good in this case, since one of the comments to a cop was along the lines of "I ain't f**king stupid." Lucky for the kid that the cop threatened an immediate arrest before I could get on a roll about how stupid it was to say that. But I'm digressing.).

I agree that having counsel is probably going to be necessary, but I have been taking the position that he would be there for, well, counsel. Ultimately, the kid is going to have to talk to the judge, there is just no way around it.

But my other half did bring up an interesting intellectual question for me: are the Miranda Rights absolute? Do you, in fact, have a true right to remain silent, or is there an implicit assumption of guilt in Miranda?

Now I'm sure that every lawyer (VK?) is asking themselves how I could be so dense as to not know the answer, but this is something that has never been an issue before in my life (and had better not ever be again). But maybe someone out there would be interested in how I come up with my conclusion that the Miranda Rights are not really well constructed.

First, I looked at the Fourth, Fifth, and Sixth Amendments to the Constitution, as they seemed to be the ones that are the most relevant to criminal matters:

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

OK, so the Fourth and Fifth Amendments seem to be the basis for the Miranda Right to remain silent. But they don't really seem to provide a basis for completely refusing to cooperate in an investigation (like these people did with their cards invoking Miranda). You are not required to provide testimony against yourself and there needs to be some reason for the questioning, but asking basic factual non-incriminating questions would appear to be legit.

Basic identifying information like name, address, date of birth are all legit (noted on the About.com page on Miranda Rights - no link provided because the page crashes my computer every time). Questions that elicit only facts or information about others should also be legal. So a question along the lines of "Are you aware of anything that would indicate that Joe did X?" should also be good as it is a simple yes or no question that inquires about someone else. The follow-on of "What would that be and how did you come about this information?" may be a question on which your 5th Amendment protection against self-incrimination could be invoked.

But at no point should the Miranda Right protections be able to be used to completely hamper, shut down or otherwise obstruct an investigation. Even the suspect or defendant has a basic level of required cooperation - so long as it doesn't violate the 4th or 5th Amendments.

I believe that this is why the 6th Amendment provides for counsel. The counsel is there to advise their client on when it would be wise to invoke the protection against self-incrimination. But that does not release them from the obligation to assist, as much as possible, in the conduct of the investigation or trial.

The purpose of our judicial system is to find truth. Anything that detracts from that is only going to make things worse. The blanket Miranda Right to remain silent is used more and more to hamper and impede the search for the truth and in that regards it is ill-conceived. It assumes that the person being interrogated is guilty (the only Constitutionally legitimate reason for being uncooperative with certain aspects of an investigation) and essentially gives them a free pass on their duty as a citizen to cooperate with an investigation - even if they did nothing wrong and may have information that could assist in finding the truth.

I think that, as they usually did, the Founders got it right with the Fifth Amendment.

The Fifth does not release anyone from cooperating with the quest for truth. It only allows them to force the burden of proof on the State - where it should be.

If the State believes that a person committed a crime, the State has a responsibility to find evidence, to build a case and to present it to a jury without forcing the accused to get on the stand and say "Yes. I did it."

The Fifth does not prevent someone from waiving their right against self-incrimination (hence, confessions are legal), but it also does not grant them a right to completely shut up. The ultimate goal of the system is still truth and everyone has an obligation to work towards it.

In one sentence, the Fifth Amendment recognizes the importance of the burden of proof being on the State with what it says and recognizes the importance of the search for truth with what it does not say.

Interesting intellectual exercise, but it really isn't too useful given my current practical problem.

But I think it's time to get a lawyer on board. If I spend one more night researching the Florida State Statutes online, I'm going to scream.

All because someone couldn't keep their mouth shut.