The 5th Amendment Needs a Lobbyist.
Speaking to the NRA today in Dallas, President Trump said something along the lines of, "As long as I am President, the 2nd Amendment will not be under siege." He has said this sort of thing before, and not just to the National Rifle Assocation. He campaigned on this issue. And as we've heard repeatedly, the NRA is a powerful lobby. In fact, almost every member of Congress gets assigned a rating, or grade from the NRA, and the organization pumps millions of dollars into the coffers of those who support the NRA, vote the way they are told to, and spout the company line--"It's not about guns, it's about freedom."
This post is also "not about guns--it's about freedom," given to us by the same folks who brought you the 2nd amendment. Imagine President Trump saying, "As long as I am President, the 5th Amendment will not be under siege." It has never happened, nor will it.
“The mob takes the Fifth,”[Trump] said at an Iowa campaign rally in September . “If you're innocent, why are you taking the Fifth Amendment?”Like many, the President's comments on the 5th amendment depend on who is invoking it. The media--hosts of daily cable news programs in particular--do the same thing. It becomes an inalienable right when the person invoking it is someone they agree with, particularly if that person is in their party. When the person is "on the other side," what do we hear? "They would talk if they were innocent!" It really pisses me off.
Do we or do we not have an obligation to protect a person's right to remain silent with as much passion and fervor as we do their right to own a gun? Criminal defense lawyers spend a great deal of their alloted time for jury selection questioning potential jurors about this right. Why? Because many of them have the same views as the President. Not only does this view prevent the defendant from getting a fair trial, it is unconstitutional, and therefore, unlawful. If a person has a right to remain silent, and they choose to use that right, how can it then be held against them?
If a person declines to talk to investigators or testify at trial, it does NOT mean they have something to hide. Let me say that again--IT DOES NOT MEAN THEY HAVE SOMETHING TO HIDE. It does not mean that they are guilty. It does not mean they are anything, except smart for listening to their lawyers. So, whether it is Donald Trump (who I don't like), Bill Cosby (who I don't like) or my client facing robbery charges (who I like very much), their decision to invoke this right cannot be held against them in any way. I wish our President and those on cable news (Fox, as well as MSNBC) would promote that message as much (or more) than gun rights. But, there is no 5th Amendment lobby, nor a bunch of money to buy support from Congress.
I advise 100% of my clients not to be interviewed by law enforcement, not to take a polygraph, and not to provide any statements or evidence at all. If the police have probable cause, they are going to go forward whether you talk to them or not. If investigators are missing a piece of the puzzle, or something linking you to the crime, you may inadvertantly provide it--even if you are innocent. You do not know what the detectives are looking for or why. It's not as simple as telling the truth. There have been many cases in which an innocent person has confessed to a crime under pressure from law enforcement. Better to stay home and keep your mouth shut.
I also advise most of my clients not to testify at trial--there's just too much pressure on them-- knowing if they make a mistake, they could lose their freedom. And that's what it's about, right NRA?