You don’t say…

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You don’t say…

“You have the right to remain silent.”

That phrase is familiar to almost everyone – particularly those who have been arrested – in the past four decades. The so-called “Miranda warnings” are routinely pronounced by real and fictional police officers every day. The Fifth Amendment to the U.S. Constitution guarantees Americans the right against self-incrimination. But TV cops often say those magic words sooner than the law demands, since the protection only applies to the interrogation of suspects in custody. There are myriad exceptions, too, such as the “excited utterance” rule or a deathbed confession. Laws vary in this country from state to state.

There are some general rights you have under the Fourth Amendment, besides that of remaining silent. While you can be searched with relative impunity at borders, before boarding a commercial airline, or by private security personnel as a condition of entry onto private property, you can otherwise just say “No.” Thus in New York City, when random searches of people entering the subway – a timely response to the problem of this being an election year – were instituted, it was made clear that if you didn’t want to be searched you could say, as politely as is humanly possible, “Officer, I do not consent to any searches. I’m going to exit the station,” and turn around and leave the station.

Much the same holds true with identifying yourself. While you must produce identification on demand if you are driving on a public roadway, in most circumstances you needn’t do so. If you are being issued a summons, even for some minor offense, and do no chose to identify yourself, you may be held until you are identified by other means, so that it is clear that the summons has been issued to the right party. And in cases where an area has been closed off for crowd control purposes – say because of a parade – for all but residents or those with legitimate need, you may be asked for ID to confirm your residence. While you can certainly refuse to show your ID, the police can certainly refuse you admittance.

Keep in mind, however, that the police are no more lawyers than are we, do not like resistance of any sort, may not be experienced enough to deal with the event, and may decide to search you in any case. If this happens you should not resist, but, rather, say, again as politely (you don’t want this to escalate to violence against you) as possible, “Officer, I am not resisting and I do not consent to any searches.” You will have the opportunity to deal with the legality or illegality of the search later.

As common sense should tell you, the police may conduct a search without a warrant if you give consent, if there is some illegal item in plain view, if you are being arrested, or if there is an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence.

The most common concern of corporate lawyers on this subject is what company documents are protected. Unlike government agencies, a private business cannot stamp “Confidential” or “Top Secret” on its papers. Even the best physical locks or encryption software will only stop unauthorized snooping. But what can you do when a government agency wants to take a peek at something you’d rather keep hidden? Turn them over. Obviously, within the constraints of legal requirements to store certain documents for a certain period, if you have a written policy on how long other documents, electronic and paper, must be kept, and documents are destroyed on that schedule, the legitimately destroyed documents are non-discoverable.

We are not lawyers, nor do we play lawyers on television. But here are some general principles for when a police officer or a prosecutor or a judge asks you questions you do not wish to answer.

•            No one is above the law.

•            Ignorance of the law is no excuse. We might not always know what

the law says, but we are subject to it nevertheless.

•            Once the judicial system has made a final ruling, we are legally bound by it, unless the decision is reversed or overruled by a higher court at some future date.

•            Many citizens enjoy special privileges. The law protects most conversations between attorneys and clients, doctors and patients, clergy and confessors, as well as between spouses. However, all of these are subject to some limitations. For example, a lawyer may not advise someone to commit a crime with impunity, independent of whether the conversation is protected.

As an interesting side note, the California 2nd District Court of Appeals ruled on August 15th in favor of an attorney who made anonymous calls to police implicating her former clients in an alleged car theft ring. The appellate panel found that, in doing so, the attorney didn’t violate her clients’ constitutional rights, as the police did not seek out the information. The clients may have civil cause for redress in the case, and the California Bar Association may take punitive action, but at this moment it does not appear that the attorney committed a criminal act in making anonymous calls. It is not, by the way, unheard-of for a physician or attorney to place the public good above client confidentiality, and pass anonymous tips to the police. It is, however, rare that the anonymity is breached.

In addition to the above-mentioned privileges, there is another special safeguard against government intrusion. The majority of states have some form of shield law protecting the confidential sources of journalists. However, at the time of this writing, there is no national shield law for news reporters. That’s why a writer for the New York Times was jailed recently for refusing to give a federal grand jury the identity of her sources.

One nagging question connected with shield laws of journalists has provoked fresh controversy: who qualifies as a news reporter? With the emergence of blogs, pod-casting, and the like, the definition of journalist is potentially very broad. Some have advocated the creation of a personal privilege where the duty to protect confidential conversations extends to all citizens. However, in this era of hyper-sensitivity over terrorist threats, security demands will probably continue to outweigh individual freedom. Don’t expect any legislature or court to broaden this right anytime soon.

This example of the jailed journalist leads to the ultimate alternative: civil disobedience. If you do not wish to testify before a duly authorized government agent or legal body, you can choose instead to spend time behind bars. And it is not just refusing to answer questions that can lead you to jail in the name of principle. We recall the case of David Gutknecht, brother of a Peace Corps chum, who, back in the 60s was against the war in Vietnam. He was eventually called up for his physical. As it happens, he was deaf in one ear, which would have made him an automatic 4F. However, he believed that if he went for his physical, knowing that he was 4F, he would be giving his tacit approval to the process, and, thus, the war. He therefore, knowing full well that he was 4F, refused to take the physical. And the local draft board, knowing full well that David was 4F, sent him off to Leavenworth Federal Prison. This left us with the Gutknecht standard for making ethical decision which might produce annoying consequences: What would David Gutknecht do in this situation.

The first lesson taught in law schools is that legal advice is worth exactly what a client pays for it. Our best free advice to you is this: when in doubt, consult a lawyer. If you don’t like what you hear, ask another. And if you are still unhappy, follow your own instincts. But always be prepared to pay the consequences.

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