By James W. “Jim” Bannister

In October 2017, George Papadopoulos, a former Trump campaign advisor, pled guilty to giving false information to federal investigators. Two months later, Michael Flynn, the former national security advisor, also pled guilty to the same charge. Both of the interviews that resulted in these false statements were given voluntarily by Papadopoulos and Flynn after each individual willingly waived his right to remain silent.

These are two of the many examples of high-profile pleas in the world of criminal defense work. For the person in question, it brings to mind the Arab proverb, “The tongue is the enemy of the neck.” Or, as I personally translate it, one’s tongue is figuratively the rope with which an individual hangs oneself. The Bible has a similar proverb: “Those who guard their tongues keep themselves from calamity.” 

At this time in history, I would argue that the right to remain silent (also known as the Fifth Amendment) is one of the most well-known rights protected by the U.S. Constitution. After all, who has not heard law enforcement say to an arrestee on television, “You have the right to remain silent. Anything you say can and will be held against you.”

However, in my experience, the right to remain silent is the right least likely to be exercised by an individual. As a criminal defense lawyer, it is rare for me to see a client who has been charged with a crime and has not already spoken with law enforcement.

Why is this? Let me take a crack at explaining. 

To some extent, people being questioned likely do not understand the legal minefield through which they are walking. Only four years ago, federal law enforcement agencies such as the FBI, DEA, and ATF had policies that prohibited the taping of suspect and witness interviews. Up until then, at least two agents were required to take handwritten notes of the interview, and those notes would subsequently be summarized in typewritten format. The suspect or witness would not receive a copy or be given a chance to point out errors and omissions in these notes. This process poses problems for the unwary because the context of questions and answers is completely lost. 

An example of the importance context plays: In the movie “My Cousin Vinny,” Bill Gambini and Stan Rothenstein are told that they are being investigated for the shooting of a convenience store clerk in rural Alabama. Immediately, after Sheriff Farley tells the young New Yorkers that they are being arrested because of the shooting, Rothenstein, in total confusion, utters: “I shot the clerk? I shot the clerk?” At the trial, Sheriff Farley truthfully testifies that he heard Rothenstein say, “I shot the clerk. I shot the clerk.” Sheriff Farley’s testimony of what he heard Rothenstein say was without any of the context of Rothenstein’s confused demeanor and inflection. Without having this important context, Rothenstein’s statement took on an altogether different, incorrect meaning; indeed, it conveyed the opposite interpretation of what Farley originally intended.  

Additionally, federal agents are ordinary people subject to the same distractions and misperceptions as the rest of us. In my own work, I have seen instances where an agent’s summary of an interview included significant statements that were incorrect. In one particular case, according to the interview summary, my client allegedly said that he did not attend a particular conference. However, in reality, my client attended that particular conference every single year that it was offered. But for some quick action on our part to get this mistake corrected for our client, this one issue could have potentially become the subject of an allegation of his giving false information to a federal agent. 

As mentioned, interview summaries are never provided to the subject to check for inaccuracies like this one. By way of contrast, in every civil lawsuit, witnesses are typically “interviewed” by way of a formal deposition that is transcribed word for word by a licensed court reporter. The deposition is also usually audiotaped by the court reporter to ensure the official transcription be as accurate as possible. Even then, the transcribed deposition is submitted to the witness to review for errors.

In May 2014, the Department of Justice realized that the credibility of its agents was suffering from this no-recording policy. Unfortunately, the new policy only “encourages” agents to electronically record interviews. Simply “encouraging” agents has not equated to changing old habits.

Furthermore, federal agents do not have any special rights or authority when approaching someone in his or her workplace. Yes, it can be intimidating and overwhelming when an agent shows up at a place of business, but the person in question has every right to turn agents away and ask to speak with them at another time when he or she can have a lawyer present. 

The right to remain silent remains invaluable for each of us as Americans. There may be a moment when it is entirely appropriate to tell your side of the story, but it is never a good idea when facing two federal agents — or any law enforcement for that matter — who say they just want to speak with you. Too much is at stake. Especially when their mistake in hearing what you have to say could result in a false information charge.