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Month: August 2010

Roger Clemens and Perjury

Andy Petitte avoids PerjuryIn a piece in the New York Times, Michael S. Schmidt, explains how a baseball icon has been reduced to the status of a suspected felon. Once again, the culprit is Clemens’ failure to simply remain silent in the face of governmental intrusion into his life.

Whether he took steroids or not, he now faces a conviction for talking. No talking, no conviction.

Simple as that.

This is why criminal defense lawyers tell their clients that the best way to avoid prosecution for a crime is to never give up your right to remain silent. The minute you start answering questions put to you by police, prosecutors or government officials like members of Congress, especially while testifying under oath, you expose yourself to criminal liability.

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Blagojevich and Remaining Silent in a Jury Trial

Blagojevich - Going to Jail

It is easy for criminal defense attorneys to tell clients that it is better not to testify during a jury trial. Convincing them to take your advice is another story. Just look at Blagojevich.

It is human nature to want to explain your way out of trouble. As described before, talking your way out of one crime can result in prosecution and conviction for another crime. Misdemeanors can turn into felonies. I’ve seen people charged with perjury, a serious felony, for trying to lie their way out of traffic tickets while under oath.

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Constitutional Rights are for Everyone, Including the Right to Shut Up

don't forget your right to Shut UpSo, we finally get to the juicy bit. This shows the other side of the bad penny you toss every time you waive the Fifth Amendment and talk to the government, and forget your right to Shut Up.

When you try to talk your way out of things, sometimes you make mistakes in the way you tell your story. Sometimes you lie. But, frankly, to be convicted of obstructing or perjury or various other ‘crimes and misdemeanors’ you only have to look guilty to a jury of your peers – after they have reviewed all of the evidence and decided your guilt beyond a reasonable doubt (of course that is all that matters to any experienced criminal defense attorney in any case, but that is a discussion for another day…

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The Fifth Amendment: The Ultimate Protection from Government

1156821_handcuffs.jpgLast time we talked about the fundamental importance of the right to remain silent. Experienced criminal defense attorneys will all tell you that half of their clients wouldn’t be clients if they had only invoked their right to remain silent. When the police question you about a burglary and you say, “I was only looking around,” or something equally ill advised, you have just proven an essential element of a felony….i.e. that YOU (not someone else) are the person who was there. Now, instead of forcing the prosecutor to prove you were there by convincing a jury of your peers beyond a reasonable doubt that you were in fact the person who was seen at the crime scene, so to speak, they simply repeat what you said in court to the jury. Just as Miranda warns us: Anything you say can and will be used against you in a court of law. And, it will.

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The Right to Remain Silent: Use It or Lose It

Remain Silent or Go To PrisonWhat do public figures from Richard Nixon to Martha Stewart all have in common?

They lied.

But, they didn’t lie to just anybody. (I mean that wouldn’t really distinguish them from most other public figures now, would it?). No, they lied to government officials during formal questioning. Thus, they exposed themselves to allegations of perjury, obstructing a government agent, fraud and perhaps much more.

In some jurisdictions, lying about crimes committed by others can make you an accessory after the fact. Conspiracy charges might follow. Even RICO cases can stem from organized collaboration to defraud governmental officials resulting in the obstruction of justice (18 U.S.C. ยง 1961-1968).

And, for the most part, all these famous folks had to do was listen to their lawyers. Under the Fifth Amendment to the U. S. Constitution, and comparable state constitutional provisions such as Article 1 Section 9 in Washington, we all have a right to remain silent when being questioned by government agents. This is a fundamental right under the Bill of Rights. Right up there with the First Amendment, which lets us say things, the Fifth Amendment lets us not say things.

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