Swamp Water Jurisprudence: Taking the Fifth


by Judge Dennis Challeen

Once again we’re hearing about defendants, politicians, “targets of investigations,” in court declaring, “Upon advice of counsel, I exercise my constitutional right to remain silent.”

The Fifth Amendment to our U.S. Constitution clearly states no person “shall be compelled in any criminal case to be a witness against himself ...”

There is nothing wrong with our Constitution. The Founding Fathers were aware of people being tortured until they confessed to crimes they may have or may have not committed. British colonial judges, like many people today, often concluded that if an accused refused to answer questions, that indicated guilt. The drafters of our Constitution were centuries ahead of their time; they knew people being tortured were unreliable and would “tell the torturers what they wanted to hear” in order to stop the pain.

In modern America most people find it unbelievable that people would come to court and plead guilty to something they didn’t do. But it’s not unusual. On many occasions I had elderly people plead guilty to shoplifting because they had left the store without paying for merchandise. If the accused has a clear record, it’s unusual for the elderly to begin committing petty crimes in their old age. Even when they plead guilty, the judge must then establish for the record, what we call in law, proof of the criminal mind. The judge cannot accept the plea if the person is suffering from dementia or Alzheimer’s disease. Often they display a confused look trying to figure out why they would do such a thing. Prosecutors would often step in and agree to a dismissal as long as they shopped in the future with a member of the family present. I also had people with dementia enter a stranger’s home, lost as to their whereabouts.

But what about serious crimes such as murder? Since 1992, 29 people in the U.S. have pleaded guilty to a crime they did not or could not have committed, because DNA evidence conclusively proved someone else committed the crime; and they each unjustly served an average of 13.6 years in prison.

There is an old saying among legal scholars that cases with bad facts make for bad law. In 1964 an Arizona sheriff took a 16-year-old juvenile into custody concerning an obscene phone call. The local judge held a hearing the next morning and the juvenile remained in detention for several days. The boy’s mother was not notified of the arrest or of the proceedings. The U.S. Supreme Court ultimately heard this case and ruled that juveniles must be afforded many of the same due process rights as adults. Juvenile courts are based upon rehabilitation — adult courts upon punishment and public safety. Locking up children should be the last resort and only when they commit crimes of extreme violence.

When the Supreme Court ordered applying the “right to remain silent” to juveniles, we got some unjust results. Common examples are underage liquor violations. Responsible parents tell their children to respect the law and cooperate with law enforcement officers when confronted. Teenagers fall into the unwise trap of attending “beer parties” that are often raided by the police. Those who admit to drinking are ticketed and those who remain silent are not. That brings into play another rule of law that applies to all accused. A person cannot be convicted on the sole testimony of an accomplice, unless corroborated by independent evidence (in this juvenile case a beer in the hand or a breathalyzer test). Basically, it’s a good law, keeping the guilty from escaping guilt by blaming “an innocent scapegoat.” But the result is a dilemma for prosecutors — the teenager who is honest and confesses ends up in court, while the teenager who remains silent, lies, and is uncooperative goes free. Not a good example for our youth when following their parents’ lecture on being honest, truthful and responsible.

Except for the most pious, most young people occasionally make foolish and unwise decisions. Juvenile records are not always forgotten and can come back to haunt us as adults and disqualify some from obtaining life-changing employment. I recall a young man who failed an important government security clearance because of an underage drinking violation and a young woman who did not gain a substantial business promotion because she shoplifted a tube of lipstick as a young juvenile.

Fortunately, some prosecutors, like our present Winona County Attorney’s Office, have implemented diversion programs that allow juvenile offenders a chance to redeem themselves by doing constructive consequences — by learning useful knowledge important for later life as an adult (e.g., community service, understanding credit cards, home and auto maintenance, gun safety, citizen rights and obligations, boating and hunting laws, along with many other choices for the juvenile and parents to make). They thus avoid a criminal record, and can become constructive contributors to society.


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