The Berks Barrister Winter 2017 - 6

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Don't Assert the Fifth,
Assert the Sixth.

Then Shut Up!

T

here are two books that should be on every lawyer's shelf.
The first is the Right to Remain Innocent by Professor
James Duane of the Regent University School of Law. He
teaches Evidence, Civil Procedure, Trial Practice, and Appellate
Advocacy. The second is The Privilege of Silence, 2nd edition, by
Steve Salky and Paul Hynes, two Washington, DC white collar
criminal defense lawyers.
Every lawyer, and I mean any lawyer no matter what type
of law you practice, needs these books. You should start with
Professor Duane's book, because after reading his book you are
going to realize you need to know all you can about the right to
remain innocent. To understand the right and what the Fifth
Amendment means and how it is used, you will need to then have
the second book as your go-to treatise on the law.
Professor Duane, in The Right to Remain Innocent, begins by
pointing out that the criminal laws we draft in this country are
so open-ended and broad that ANYONE can commit a crime
without knowing it.
He points to a Virginia state legislator who found deer antlers
on his property and thought they would look nice on his office
wall. Luckily, the authorities decided not to prosecute him for
violating Virginia state law. A news article about members of the
Kennedy family saving a sea turtle points out how the brothers
were interviewed by Federal Authorities for violating Federal Law.
If the Federal Authorities want to speak to you about where the
seeds you used to plant Hyacinth in your garden came from, call a
lawyer.
Some Federal Laws incorporate and criminalize the violation
of any law, treaty, regulation, Indian Tribal law or any foreign law.
How can you know what law you might be violating? The police
(or really any government agent) do not have to explain the law
or why they want to speak to you. They can even mislead you into
why they want to speak with you. How many laws do you violate
in one day?
Professor Duane cites a study (Chapter 1, Footnote 7) that
the U.S. Congress passed a new criminal law each day it was in
session from 2000 until 2007. The author gets more serious when
he points out that studies by the Innocence Project studies show
that 25% of defendants exonerated by DNA evidence either gave
a confession or an incriminating statement (Chapter 1, Footnote
6). The power of the police and the training they have received

6 | Berks Barrister

By Kevin Feeney, Esquire

can really lead a person to confess. Even worse, Duane points out
that it is the innocent person giving incorrect information.
Professor Duane advises that, if the police want to speak with
you about a crime, and, even if you are completely innocent, you
may give the police inaccurate information (Where were you at
2:00 on November 14 of last year?). Such inaccurate information
("I was bowling with Frank, when really Frank did not bowl that
day.") can lead the police to focus on you and spend less time
following other leads and suspects. Second, this statement will be
told to the jury and used as evidence of guilt. Finally, Duane notes
the police may share this information with victims and witnesses
and it will convince them that you are the right person.
The case of Ronald Cotton is a chilling example. He served
10 years in prison until DNA evidence cleared him of rape.
Cotton heard the police wanted to speak with him, so he went
to the police station. He knew he had not done anything wrong.
When told the date of the rape, he mixed up his alibi and gave the
wrong names. When he realized his mistake and tried to give the
correct names for the correct date, it was too late. The police had
concluded he was guilty.
Another exoneree, Earl Ruffin, served 20 years before DNA
evidence freed him. He also spoke to the police and gave them
his alibi and the correct names of the people he was with when
the rape was committed. The officer, however, testified that Ruffin
said he was at his girlfriend's house. Ruffin had actually been at his
house with his girlfriend. This dispute over three words in a police
officer's notes (and NOT in Ruffin's signed statement) cost Ruffin
20 years of his life.
Professor Duane lays the danger of speaking to the police
by giving example after example. In his book, he describes
specific situations where people have been ensnared and charged
with criminal liability based upon the ever-expanding powers
of the government and the new laws that are created every day.
It's almost impossible for anyone to know whether they have
committed a crime.
Luckily, our forefathers had the idea to add 15 words to the
United States Constitution-the Fifth Amendment.
Those 15 words really contain the principles of selfincrimination, compelled testimony. The problem becomes it is not
really clear what is meant by "self-incrimination" or by "compelled"
or by "testimony." For that you need The Privilege of Silence.


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Table of Contents for the Digital Edition of The Berks Barrister Winter 2017

The Berks Barrister Winter 2017 - 1
The Berks Barrister Winter 2017 - 2
The Berks Barrister Winter 2017 - 3
The Berks Barrister Winter 2017 - 4
The Berks Barrister Winter 2017 - 5
The Berks Barrister Winter 2017 - 6
The Berks Barrister Winter 2017 - 7
The Berks Barrister Winter 2017 - 8
The Berks Barrister Winter 2017 - 9
The Berks Barrister Winter 2017 - 10
The Berks Barrister Winter 2017 - 11
The Berks Barrister Winter 2017 - 12
The Berks Barrister Winter 2017 - 13
The Berks Barrister Winter 2017 - 14
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The Berks Barrister Winter 2017 - 17
The Berks Barrister Winter 2017 - 18
The Berks Barrister Winter 2017 - 19
The Berks Barrister Winter 2017 - 20
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The Berks Barrister Winter 2017 - 27
The Berks Barrister Winter 2017 - 28
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The Berks Barrister Winter 2017 - 40
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