The Case for Silence

There’s an old saying: “Better to keep your mouth shut and allow people to think you’re stupid than to open your mouth and remove all doubt.” The same can be said for a Defendant’s propensity to talk thinking that they can somehow talk themselves out of an arrest.  In the vast majority of cases this is simply untrue.  In fact, the arresting officer wants the individual to keep talking hoping to obtain inculpatory evidence against the them. 

Two recent cases exemplify the importance of keeping quiet.  The first was discussed in my prior article, Recent Court Decisions Expand and Detract Defendant’s Rights.  In that article, I examined the case of Montejo v. Louisiana, a US Supreme Court case that permitted police officers to continue questioning an arrestee even though they know the arrestee is represented by counsel.

Another case, heard in the 11th Appellate District of Ohio (Geauga County) further demonstrates the necessity to “remain silent.”  In that case, the court examined an officer's decision to conduct roadside sobriety tests.  In its opinion, the court discussed factors that must be considered in evaluating a justification for requiring the Defendant to submit to field sobriety tests (tests used by police to determine whether the Defendant’s physical and/or mental capabilities are impaired).  The court outlined eights factors to be considered.  Of those eight, three require the Defendant’s statements:  impairments of the suspect's ability to speak, the suspect's demeanor (belligerent, uncooperative, etc.), and the suspect's admission of alcohol consumption, the number of drinks had, and the amount of time in which they were consumed, if given. 

Simple math, shows that 37½ % of the factors involve the Defendant’s oral statements.  By remaining silent, the factors used by the officer are significantly reduced making it more difficult to justify the use of field sobriety tests.

Both cases demonstrate the importance of silence.  You have no obligation to respond to the officer’s inquiries and, more importantly, you have no obligation to respond to any questions without benefit of counsel.  Silence might be awkward, but may prevent an OVI conviction.