The Berks Barrister Winter 2017 - 7

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While the Right to Remain Innocent is written for everyone
and you can tell your clients to read it, the second book, The
Privilege of Silence, is a legal treatise designed for the lawyer. It is
filled with case law and examples.
After reading Professor Duane's book you will be terrified
about letting anyone speak to the police. That will lead you to
want to read the second book. The case
law involving the Fifth Amendment is
complicated and widely misunderstood
by lawyers. Professor Duane notes that
even the words you say to exercise your
Fifth Amendment right are not clear. So
The Privilege of Silence is the treatise you
need to understand the right set forth in
the federal constitution (Pennsylvania
has its own protections under its
constitution). It details and summarizes
the case law and the chapters explain
how the Fifth Amendment applies in
civil cases and divorce cases, as well as
criminal cases. See the table of contents
http://www.zuckerman.com/media/
publication/503_Privilege_of_Silence_
TOC%20and%20Introduction.pdf.
When and how you assert the Fifth Amendment can have
different consequences depending on where you are and what
type of case you have. Are you in the custody of the police?
Is it a divorce case? Is it a civil accident case? Have you been
subpoenaed to a grand jury?
What questions can you refuse to answer when compelled
by the court? Hoffman v. United States, 341 US 479 (1951) allows
that a witness in a grand jury can refuse to answer any question
that could be a link in a chain to criminal activity. The liberal
construction of the Fifth Amendment caused the Supreme Court
to reverse the contempt conviction when Mr. Hoffman (a reputed
racketeer) refused to answer questions about his business dealings.
A person can assert the fifth when the government says it has no
intention to prosecute, US v. Sharp 920 F. 2d 1167 (4th Cir 1991).
The book provides a detailed explanation of the history of the
right against self-incrimination, the elements of the right, when
and where it can be used and consequences of taking the fifth
(the possibility of an adverse inference). The case cites and index
will help any legal practitioner understand the right and explain
how your client can assert the right.
So what is the takeaway from these two books? Professor
Duane provides the answer. First chapter, don't talk to the police.
Second chapter, tell people do not plead the Fifth because it is too
complicated for a person to assert the Fifth.
Instead, the answer is to assert the Sixth Amendment's
right to an attorney. Ask for a lawyer. Do not add any adverbs or
qualifying statements. Ask for a lawyer. Tell your clients to read
the Right to Remain Innocent. Tell your clients to ask for a lawyer.
Then, hopefully, you will have The Privilege of Silence 2nd edition
on your desk and be able to help.

PROFESSOR
DUANE
TO SPEAK
LOCALLY
Professor of Law James Duane, of Regent University
School of Law, will be the speaker at the 2017 Berks
County Bar Association Lecture in Contemporary Legal
Issues. Held on the campus of Albright College, it is set
for April 24, beginning at 7:30 pm. A terrific speaker,
Professor Duane will bring his recent book, The Right to
Remain Silent, to life.
The lecture series was established in 2014 and is
held annually at Albright. It has featured prominent law
scholars or legal practitioners discussing topics of interest
to Albright students and the community at large. The
lecture series is made possible by financial support from
the Berks County Bar Association.

Kevin Feeney, Esquire, is a principal of the Reading law firm
of Feeney & Gurwitz and is a criminal defense attorney.
Winter 2017 | 7


http://berksbar.org/ http://www.zuckerman.com/media/publication/503_Privilege_of_Silence_TOC%20and%20Introduction.pdf

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
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