Constitutional Law Criminal Law Litigation

Silver Verdict Shows Risks of “Right to Remain Silent”

The recent “Guilty” verdict in the criminal trial of powerful NY politician Sheldon Silver sent a lot of loud and clear messages. Many in power in Albany use their positions for personal gain. Politicians who stay too long get to feel invincible and untouchable. When the Feds come after you, you’re in trouble. But it also sent a message about one of the rights that is central to American jurisprudence; one that has been ingrained into our culture from all those cops and lawyer shows on TV – “You have the right to remain silent.” I discussed it at length in a previous blog post But the fact remains that exercising that right can make you look guilty in the eyes of jury. And it seems that this may have been a factor in the Silver case.

verdict-sheet-from-sheldon-silvers-trial-CROPPEDAfter the conviction on all of the corruption charges, Arleen Phillips, a juror in the Silver trial, spoke to the press. Phillips had thrown the whole courtroom into a frenzy when just hours into deliberations, she passed a note to the judge saying she wanted to be excused from the jury because she felt “disrespect” and that other jurors did not to listen to anything she had to say. But the judge kept her on and reminded all the jurors to work with each other and respect what everyone had to say. Her comment to the press afterwards was:

I wanted to hear his voice so I could determine whether or not there was any arrogance or anything showing me he was capable of being deceitful, and I didn’t see that for the longest.”

This is a natural reaction most lay people have – they want to hear the defendant explain his or her side of the story. After all, if you are not guilty, why not talk? If you remain silent, you must have something to hide. In State cases, where you get to talk directly to jurors during selection, defense lawyers must spend a good part of their time in jury selection talking about the Fifth Amendment’s right to remain silent and that the judge will instruct them not to factor in any way whether a defendant takes the stand. In Federal court, judges handle jury selection with very little input from the lawyers and while the Fifth Amendment is discussed,its hard for the judge to make the point the way good defense counsel would. Judges also tend to put a lot of weight into the reminder to jurors in the jury charge at the end of the case not to consider whether the defendant testified in his own behalf. But here the Silver juror is telling us that she wanted to hear from Silver “for the longest”to determine if he was deceitful or arrogant.

To be sure, having the defendant testify is one of the riskiest decisions in any trial. Once you put the defendant on the stand, the rest of the case is almost irrelevant. If the defendant appears deceitful or evasive on any point, he’s done for, no matter how weak the government’s case was before he took the stand. The burden of proof (a defendant’s greatest friend in a criminal trial) automatically shifts to whether the defendant proved his innocence. Silver has excellent representation and I am sure having been there myself many times, they agonized, strategized and fretted over whether to put their client on the stand.

In the end they decided to not call Silver, who likely would have faced a very thorough and serious cross-examination. Had he held up though, maybe Ms. Phillips decides he was the “humble, non-assuming” (her own words) person he appeared to be to her as she watched him in the courtroom.

2 replies on “Silver Verdict Shows Risks of “Right to Remain Silent””

It reads to me (your post, that is) as if you wanted a “hook” to lead in to talking about the strategic decision of whether to testify along with the fact that the state has to prove guilt and the defendant doesn’t have to prove innocence (in theory anyway).

However, I think testifying at trial is not really what most people think of from the TV line “right to remain silent.” That’s more about shutting up to the cops, no ? Which is still and excellent lesson. I think I recall at least one or two presentations while doing Grand Jury where there would have been no case (or much harder to get the requisite indict votes) if defendant simply kept his/her mouth shut at the time of arrest. In fact, I’d be hard pressed to come up with a situation that would ever be improved by talking to the cops after you are arrested. They won’t unarrest you. And like they say on TV what you say can and will be used against you. Not used to help you. People seem to get mixed up with that last bit.

I agree with you on this. There is rarely a time when talking to the police will help you. And that is the scenario that most people think of when they think about the Fifth Amendment – in the precinct or on the street when confronted by police. But our Founding Fathers really based it on trial testimony originally as most cases then did not involve lengthy investigations and proceedings. As you know but most readers might not, that a defendant has the right to remain silent and not testify is also told to the jury repeatedly at every criminal trial. But my point is that you have to hammer home in jury selection what that means and extract a promise from each juror to follow the law in that regard as human nature is to want to “hear both sides of the story.”

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