August 18, 2020, 11:58 am
We recently posted a video from a law professor and law enforcement officer reminding us of why it’s never a good thing to speak to the police without an attorney present. Remember the warning; what you say can and will be used against you.
The Eleventh Circuit Court of Appeals last week gave us that same warning when an individual is on probation. It talks about the “classic penalty situation”. A “damned if you do, damned if you don’t” scenario that arises when a person must choose between incriminating himself, on the one hand, or suffering government-threatened punishment for invoking his Fifth Amendment privilege to remain silent, on the other.
The petitioner in that case was on probation for a sexual offense. His probation officer came to search his home and came across a cellular device and long story short the guy wound up with new charges for what the PO found on that phone. The middle part of the story is where we learn our lesson… You see, the Petitioner was told that if he didn’t answer the PO’s questions truthfully he would be violating the terms of his probation, would be revoked and would go back to prison. On the other hand, if he did answer truthfully he’d go back to prison for what he was admitting to… a classic damned if you do, damned if you don’t situation.
The good folks at the 11th Circuit found that when someone is an a “classic penalty situation”, their 5th Amendment rights are self-executing and (as established by the Supreme Court) a defendant does not lose their Fifth Amendment privilege simply because they are imprisoned or on probation.
The case can be read here: http://media.ca11.uscourts.gov/opinions/pub/files/201713358.pdf
The lessons learned are: If you are not on probation, you do not need to speak to the police and even if you are on probation, you retain your 5th Amendment Rights to not say anything that might incriminate you! [Naturally, the primary lesson is to not do anything that could get you into trouble, but it’s critical to know your rights anyhow]
The post Eleventh Circuit reminds us that what we say can be used against us. appeared first on Florida Action Committee.
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Author: Florida Action Committee
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