Why Staying Silent Could Be Your Best Defense

by: Matt Newburg

05/18/2015 11:58 AM EST
Tags:
  criminal  
  criminal law  
  defendants  
  miranda  
  silent  

As a criminal defense lawyer, it is no surprise that I constantly tell my clients not to consent to a search and not to talk with authorities.  However, very rarely do I get the opportunity to tell this to the parents of kids who are in trouble.  The story is all too familiar.  A child gets in trouble at school or while they are hanging out with their friends and there becomes a time when that child's parents find out.  Naturally, the parents next reaction is to call either law enforcement or some authority where they are likely told that if their child cooperates and "tells the entire story" the child will have nothign to worry about.  So, the parents walk the child into the police station or the principal's office where the child confesses to crimes with significant penalties and,despite the promise from the authorities, is later charged with a criminal offense. 

The "confession" is the most difficult piece of evidence to overcome despite the use of questionable tactics from law enforcement.  Challenging a confession requries an understanding of the different methods used by authorities to coerce an individual into a confession.  The most widely used method is the Reid Technique.  The Reid Technique employs nine different steps:

  • Step 1 - Direct confrontation. Lead the suspect to understand that the evidence has led the police to the individual as a suspect. Offer the person an early opportunity to explain why the offense took place.

  • Step 2 - Try to shift the blame away from the suspect to some other person or set of circumstances that prompted the suspect to commit the crime. That is, develop themes containing reasons that will justify or excuse the crime. Themes may be developed or changed to find one to which the accused is most responsive.

  • Step 3 - Try to discourage the suspect from denying his or her guilt. Reid training video: "If you’ve let him talk and say the words ‘I didn’t do it’[...]the more difficult it is to get a confession."[citation needed]

  • Step 4 - At this point, the accused will often give a reason why he or she did not or could not commit the crime. Try to use this to move towards the confession.

  • Step 5 - Reinforce sincerity to ensure that the suspect is receptive.

  • Step 6 - The suspect will become quieter and listen. Move the theme discussion towards offering alternatives. If the suspect cries at this point, infer guilt.

  • Step 7 - Pose the “alternative question”, giving two choices for what happened; one more socially acceptable than the other. The suspect is expected to choose the easier option but whichever alternative the suspect chooses, guilt is admitted. There is always a third option which is to maintain that they did not commit the crime.

  • Step 8 - Lead the suspect to repeat the admission of guilt in front of witnesses and develop corroborating information to establish the validity of the confession.

  • Step 9 - Document the suspect's admission or confession and have him or her prepare a recorded statement (audio, video or written).

While this can be challenged in court, it can all be avoided if the individual chooses to remain silent, get a lawyer and let the lawyer do the talking.

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