Chandra Bozelko| More Content Now
In closing arguments, Lead Impeachment Manager Rep. Jamie Raskin (D-Maryland) asked, If you were charged with inciting violent insurrection against our country and you were falsely accused, would you come and testify? I know I would. Id be there at 7 in the morning, waiting for the doors to open. Im sure thats true of 100 senators in this room. I hope its true of 100 senators in this room.
Impeachment Manager David Cicilline (D-Rhode Island) did the same, saying if he were accused of a crime he hadnt committed, I would demand the right to tell my side of the story.
Raskin had issued a statement to the same effect Feb. 4, and House impeachment managers included this argument in their pre-trial brief.
The fact that impeachment proceedings arent entirely criminal they address high crimes and misdemeanors and end in conviction or acquittal but the convicted doesnt go to prison shouldnt excuse the impeachment managers from acknowledging that silence often protects the innocent; former President Donald Trumps refusal to testify shouldnt be interpreted in a way that causes others not to use the same right against self-incrimination.
The Fifth Amendment right to avoid giving testimony against oneself appears to apply to courtrooms but in the Miranda v. Arizona decision which gave rise to the famous Miranda warning: You have the right to remain silent ... the Supreme Court of the United States decided that it extended to pre-arrest police interaction, too. Basically, someone suspected of wrongdoing has the right not to talk at all.
Silence, though, should never be equated with guilt. James Duane, professor of law at Virginias Regent University and author of You Have the Right to Remain Innocent, says that assuming anyone who refuses to speak is guilty is monstrously false.
Still, technically, impeachment managers were allowed to make this argument called an adverse inference. Its allowed in civil proceedings and in some criminal proceedings. And in 2013, the Supreme Court confounded the general understanding of the Fifth Amendment right not to testify against oneself: In Salinas v. Texas, the court held that simply staying silent and not expressly mentioning the phrase Fifth Amendment doesnt necessarily confer constitutional protection. Through a spokesperson Trump didnt use the talismanic phrase Fifth Amendment, but these arent strictly criminal or civil proceedings, so it ultimately didnt matter.
But the fact that this tactic is legal in certain settings doesnt mean that calling out Trumps absence is right. Legal experts have panned the Salinas opinion, mostly because a suspect who ham-handedly invokes his Fifth Amendment right may lose that protection and his failure to speak can be used against him, which was never the intention of the right. Lawrence S. Goldman, co-founder and past president of the New York State Association of Criminal Defense Lawyers, called the Salinas decision bizarre and unrealistic.
Remaining silent is practical; its one way to reduce the number of false convictions that abrade the criminal legal systems reliability and integrity. The National Registry of Exonerations, a project of the University of California Irvine Newkirk Center for Science & Society, University of Michigan Law School and Michigan State University College of Law, found 27% of exonerees falsely accused and convicted of homicide gave false confessions. Even in the absence of these admissions, 182 other wrongful convictions were caused, at least in part, by misconduct in interrogating suspects. These miscarriages would have been impossible if the suspect refused to talk.
We shouldnt forget the Fifth Amendments place in the American experiment that the impeachment proceedings ultimately sought to preserve by insisting on accountability for everyone responsible for the Jan. 6 insurrection, even if one of those people was the president.
The Fifth Amendment severed our ties to the traditions of the English Courts of Star Chamber, inquisitorial tribunals that would drag an accused person before them without even telling him what he was suspected of and force him to talk, essentially getting him to make the case for the government. Framers of the Fifth Amendment envisioned an America where this wasnt permissible. The right it enshrines is essential to the freedom that the Capitol symbolizes and that free and fair elections allow to endure, and yet, the amendments now being twisted in ways that threaten that same freedom.
Even those opposed to the Fifth Amendment, believing it will solve more crimes through even more confessions, would agree that at the very least, the decision to use Trumps silence against him reveals the impeachment managers hypocrisy.
All nine of the impeachment managers co-sponsored the Justice in Policing Act. The bill aimed to bring more accountability to police misconduct.
While the Justice in Policing Act didnt address false confessions directly, the primary cause of these induced admissions is coercive interrogation techniques by police, which some experts call the modern equivalent to the rubber hose. (Richard A. Leo, Journal of the American Academy of Psychiatry and the Law Online September 2009). The right not to incriminate oneself is part of the reform they envision. Its hard to imagine any of these co-sponsors advising a civilian stopped by cops to spill everything lest they be viewed as guilty.
More people watched the second impeachment proceedings than the first; an average of 12.4 million viewers tuned in across CNN, Fox, MSNBC, ABC and CBS. Untold millions of them may be approached by police this year. According to data released by the Bureau of Justice Statistics in December, 28.9 million people experienced police-initiated contact in 2018. Suggesting that silence implies guilt does people who interface with law enforcement a great disservice.
No one should cast former President Trumps refusal to testify on his own behalf as evidence of culpability. Impeachment managers may have eroded the general understanding that choosing to keep ones mouth shut is still a valid and often wise decision.
Chandra Bozelko writes the award-winning blog Prison Diaries. Follow her on Twitter @ChandraBozelko and email her at email@example.com.
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