Fifth Amendment Really Means No Self-Incrimination Says Court

Appeals Court: Asking For Lawyer Doesn’t Imply Guilt

August 27, 2013 by UPI - United Press International, Inc. 

NEW YORK, (UPI) –  Prosecutors may not use a suspect’s request for a lawyer during police questioning as evidence of guilt, a U.S. appeals court in New York ruled.

A suspect’s silence alone in police interrogations isn’t enough to trigger Fifth Amendment protections against self-incrimination, the 2nd U.S. Circuit Court of Appeals ruled, citing a June U.S. Supreme Court ruling.

But requesting an attorney during a police interrogation before arrest automatically triggers such protections and the government was wrong when it used a suspect’s sudden silence during the interrogation in making a case for his guilt, the appeals court said.

“A request for a lawyer in response to law enforcement questioning suffices to put an officer on notice that the individual means to invoke the privilege,” the court said in a case involving a man convicted of trying to sneak a foreign national into the United States.

The appeals ordered a new trial for Tayfun Okatan, convicted by a jury in 2011 of three charges of trying to bring German citizen Munir Uysal illegally into the United States.

Okatan did not bring Uysal into the United States, and the evidence of his guilt “was purely circumstantial and far from overwhelming,” the court said in recounting the lower court proceedings in Albany, N.Y.

Yet, a federal prosecutor told the Albany jury the defendant’s sudden silence after asking for a lawyer revealed the “kind of conduct that someone who’s been caught engaged in,” the appeals court said.

That is unconstitutional, the court ruled.

“The Fifth Amendment guaranteed Okatan a right to react to the question without incriminating himself, and he successfully invoked that right,” said the court, whose ruling can be found at tinyurl.com/UPI-Appeals-Court-Ruling.

The prosecutor’s comment to the jury about the defendant’s failure to testify was, in effect, a penalty “for exercising a constitutional privilege,” the court said, quoting the Supreme Court.

“In order for the privilege to be given full effect, individuals must not be forced to choose between making potentially incriminating statements and being penalized for refusing to make them,” the appeals court said.

“Accordingly, we conclude that where, as here, an individual is interrogated by an officer, even prior to arrest, his invocation of the privilege against self-incrimination and his subsequent silence cannot be used by the government in its case in chief as substantive evidence of guilt,” the court ruled.

The Justice Department had no immediate comment on the ruling.