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The privilege of silence

By Jeff Terrill

Fort Wayne Reader

2012-12-06

Have you ever heard about someone “lawyering up” or “taking the 5th”? Under the Indiana Constitution, and the Constitution of the United States, we have a protection against self-incrimination. Stated differently, we can remain silent.

Meet Mike. Mike is 42 years old, single and the owner of ABC Co., a small manufacturing company. Mike has a girlfriend he really likes. He met her after she separated from her husband. Her name is Amy. Amy doesn’t want anyone to know they are dating until her divorce is final. By the way, Mike and Amy aren’t real.

Mike was interested in buying a competing company. Let’s call that company XYZ. Just a few days ago, the owner of XYZ pulled the plug on the deal and decided not to sell. Coincidentally, Amy’s husband is a supervisor at XYZ. His name is Steve. Steve moved out of the house about six months ago.

Last evening, Mike drove his truck to XYZ around 8:00 p.m. He parked in the employee lot, turned off his ignition, sat in his truck awhile and thought about the deal that didn’t go through. Mike wasn’t upset and he respected the owner’s decision. He watched a couple of employees finish up a smoke break and then head back inside. Mike got out of his truck and walked around the back of the building to admire the facility. A few minutes later, Mike got back in his truck. He called Amy. She answered and invited him to come over to her home. Mike spent the night at Amy’s house.

This afternoon, Mike got a call from a detective asking him if the two could meet. The detective didn’t tell Mike why he wanted to meet with him.

When they met, the detective asked Mike to sign a waiver of rights form. Mike glanced at the form and then signed it. Mike was not worried.

After some small talk, the detective asked Mike what he did last night. Knowing that he had done nothing wrong, Mike told the detective that he worked late. The detective asked Mike when he got home from work. Wanting to keep his relationship with Amy private, Mike told the detective he got home around 8:00 p.m., took a shower, watched TV and went to bed. The detective asked Mike why his car was seen in the employee lot of XYZ Company last evening after 8:00 pm. Mike acknowledged that he had forgotten to tell the detective that he did park in the XYZ Company lot and that he had just days earlier learned that the business was not for sale. The detective asked Mike if Mike had forgotten to tell him anything else. Mike said no.

The detective showed Mike surveillance video of a person that looked like Mike walking next to the XYZ building last evening. Mike explained that he did get out of his car and walk around the building. The detective then showed Mike a cell phone photo taken by an employee of XYZ named Steve. Mike looked at the photo of his truck parked outside of Amy’s house last night. Mike explained that his girlfriend, Amy, was going through a divorce and he was trying to protect her privacy and that was why he didn’t tell the detective that he slept at her home last night.

The detective then showed Mike a photograph taken by the detective of an SUV with its windows broken and side mirrors torn off. Mike said he had never seen that car before in his life. The detective told Mike the vehicle belonged to Steve, Amy’s husband. The detective then showed Mike a photograph of an XYZ Company door that had been kicked open sometime last night. The detective indicated that several items were missing from the business. Mike said he had no idea how that happened. The detective said, “I know. How could you know? You were home watching…uh…TV.”

Mike didn’t damage Steve’s vehicle. He didn’t break into the XYZ Company and he didn’t steal anything. Mike is a good guy. He wasn’t mad at Steve and he definitely had no reason to break into XYZ Company. But Mike lied to the detective and now he looked guilty. He now seemed like a guy who maybe did vandalize his girlfriend’s husband’s SUV and who did burglarize a competing business. Mike would now have to wait to see if he would be charged with burglary and criminal mischief.

Mike wasn’t required to speak with law enforcement. He met the detective because he had nothing to hide (or so he thought). Mike never thought about calling his lawyer before he met with the detective. Why would he? He didn’t commit any crimes.

Mike learned the hard way that the privilege against self-incrimination isn’t just for guilty people.

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Jeff Terrill is a partner/shareholder with the law firm of Arnold Terrill Anzini, P.C. Mr. Terrill represents clients accused of crimes throughout northeast Indiana. You can contact Mr. Terrill with any questions or comments at his office at 260.420.7777 or via email at jterrill@fortwaynedefense.com. Learn more about his firm at www.fortwaynedefense.com. This article expressed opinions and observations of the author, is not intended as legal advice and does not create an attorney-client relationship between the author and the reader. Please consult a qualified attorney with any legal questions or issues you might have. Thank you.