Understanding Your Right to Remain Silent

Most people have a basic understanding of the right to remain silent.

Essentially, if you are in custody, and an officer (or any person associated with law enforcement) is asking you questions that could be harmful to you, you have the right to refuse to say anything and the right to an attorney. That right comes from the Fifth Amendment to the United States Constitution which is also known as the right to remain silent.

Whether you are in custody or not, you always have the right not to talk to a police officer. Simply put, if a police officer asks you, or anyone else, about a crime, you have the right to simply refuse to answer those questions.

As an example, if you are a witness to something you believe is a crime and a police officer wants to talk to you about what you observed, the Constitution of the United States allows you to refuse to talk to that police officer.

Of course, if you choose to speak to law-enforcement, you do so at your own detriment, which is to say, if you lie, or say anything incriminating, that information can be used against you. There are criminal consequences for lying to a police officer. Many witnesses get themselves into trouble by lying to a police officer when the simple answer would be to simply refuse to say anything at all.

You also have a right to be free from questioning once formal criminal charges have been filed against you. That right stems from your Sixth Amendment right to have an attorney represent you. Restated, if you are awaiting criminal charges, nobody associated with law enforcement can ask you questions about that crime if you are represented by an attorney. The logic behind the Sixth Amendment right is simply that you shouldn't be asked questions about a crime unless your attorney thinks it is in your best interest to do so. Defendants who are sitting in jail cannot be trusted to make good decisions on their own behalf.

Many people who are in jail awaiting trial on criminal charges make the mistake of talking about their crime with other inmates. People who are in jail have an interest in learning about the crimes committed by other inmates in order to use that information to help with their own criminal case.

Let's say for example, inmate by the name of Todd is in custody awaiting charges for a robbery. One of the people in his cell, Webb, is in custody for the murder of his own children.

Todd and Webb become friends, and one day Webb tells Todd, "I did it, I killed my kids."

Todd now has information that he can use to help get a good plea-bargain or a dismissal on his robbery charge. Todd simply goes to his attorney and says, "my cellmate, Webb, confessed to me that he killed his children."

Todd's attorney will now contact the prosecutor and try to use this information to help with his robbery charge.

There are no constitutional or legal protections which prohibit the prosecutor from using the confession made by Webb to Todd. Because a confession is a statement made against a person's interest and subjects the person to criminal liability, it is an exception to the general prohibition against the admission of hearsay.

The logic behind the exception allowing the admission of a statement against one's own self interest lies in the idea that a person would confess to a crime unless the statement were likely true.

In the federal system, or for people facing federal charges, it is very common for people in custody to use information gained from other inmates to help themselves. Most people charged with drug crimes ultimately plead guilty to a drug related charge. The sentence received is usually very harsh and involves a lengthy term of incarceration.

There is also a federal rule that is constantly used by United States attorneys - and the federal system as a whole - to encourage defendants to plead guilty. Rule 35(b)(1) of the Federal Rules Criminal Procedure provides: Upon the government's motion made within one year of sentencing, the court may reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person.

What that means, in simple terms, is for federal inmates, cooperating gives them another chance at having their sentence reduced.

Defendants enter into cooperation agreements, and in exchange for their cooperation, the government offers to file a motion to have the court review the Defendant's sentence, the type and quality of cooperation provided, and then impose a new, lesser sentence.

Here is an example: Bill is federally indicated for conspiracy to distribute methamphetamine. Bill knows several people who use meth, buy meth and manufacture meth. Bill has no defense and is looking at a sentence in federal prison of 16-20 years without parole (parole is abolished in the federal system). Bill's attorney explains to him that if he agrees to cooperate with the federal investigators, his sentence can be reduced. Bill agrees and tells the FBI and anyone else who will listen, all of the people involved in his drug ring. At the time of sentencing, Bill's sentence may be reduced for the cooperation provided, but more likely, he will receive a guideline sentence. Within one year of the date of the sentencing hearing, the United States Attorney's Office can file a motion asking the court to reduce Bill's sentence after considering the cooperation and/or assistance Bill has provided.

The more information provided by Bill, the greater the reduction in his sentence. If the information provided by Bill results in the arrest and/or indictment of 10 other defendants who use or sell meth, Bill's sentence may get reduced from 16 years to 10 years. If the information provided by Bill results in arrest and/or indictment of 10 other defendants, and Bill testifies at two hearings and one trial, Bill's sentence may get reduced from 16 years to nine years.

In short, the more help and information Bill provides to the Feds, the greater the reduction his sentence can and will be.

This provides a unique opportunity for inmates in the federal system to help themselves by befriending other inmates and learning the facts associated with another inmate's crime.

While Bill is sitting in prison awaiting trial or his plea hearing, he can use all of the information he hears from other inmates to his advantage. Similar to what can happen with state charges, defendants awaiting federal charges can also benefit from being good listeners and using the things they hear to their advantage.