Assertion of your 5th and 6th Amendment rights is difficult. This is the right to remain silent (not self-incriminate, or the 5th) and the right to counsel (the 6th). The reason it’s hard to assert these rights is that you’re not supposed to.
I’m conflicted about all this. I’ve run into police stations, waived my card and Cook County ID around and asked to see my client, where I tell them, immediately, to shut the hell up. I also tell the detectives assigned to their case that my client is shutting the hell up and that he has a lawyer.
However, as a law abiding citizen, and as someone who actually does want the police to catch criminals, assertion of these rights is anathema to the crime solving process. You have no idea how many crimes are sealed with a confession.
Now, a confession alone cannot convict you. This is the theory of corpus delicti and it basically holds that absent any other sign of a crime, a confession alone should not convict anyone. This goes back to the Star Chamber in England where confessions were elicited by a judicial system with no oversight. As a result, aristocrats and enemies of the crown admitted to treason and acts of subversion, without any other evidence being presented besides the aristocrats own (forced) confession.
Today, we find that sort of behavior reprehensible. Yet, plenty of convictions move forward where nearly the only evidence is just the confession. This is not appropriate…and in almost all cases it’s because the defendant did not clearly assert (or more likely, was completely unaware of) their right to remain silent or to retain counsel.
Sure, sure, we read all defendants the Miranda warning…but do they understand it? They almost always say the do, but if you were to explain to a person who was just arrested, sitting in a police interrogation room what their rights are in plain English, they’d be surprised. Or at least enlightened. Of course, it’s not the police’s job to give criminal defendant’s a civics lesson, just read their rights off a card and proceed like nothing happened.
So why am I conflicted? Because I want the police to catch killers, molesters, thieves and dealers. My job is to be a passionate advocate and defend your rights to their fullest extent. But that doesn’t mean I want you to get away with murder.
My favorite professor in law school was a former appellate public defender in Illinois, a JAG lawyer, and now one of the premier criminal defense lawyers in Wisconsin. His line to us the first day of Evidence was “The guilty go to prison.” He didn’t mean that our job was futile, he just meant that evidence and the truth, frequently has a way of working itself out. As it should be.