In a new case, Commonwealth v. Celester, the Massachusetts Supreme Judicial Court emphasizes how important it is for defendants to be informed of and advised regarding their right to remain silent, holding that it was ineffective for an attorney not to advise his client to invoke his Fifth Amendment right when questioned by police. The decision is legally significant in the scope that it gives to the right to effective advice of counsel, but it also illustrates what good criminal defense lawyers already know about the importance of the Fifth Amendment—a lesson that Bill Cosby would have benefited from when giving a deposition in 2005.
In most criminal cases, most defense lawyers advise their clients not to give statements to the police. This is common, often essential, advice that we give to the innocent as well as to the guilty; someone who will have to defend him or herself at trial is almost always better off not unnecessarily sharing information with prosecutors in advance. In criminal trials, the choices to invoke the Fifth Amendment and not answer questions from the police, or to remain silent at trial, cannot be held against a defendant, and so there is often little downside in taking the Fifth, particularly in interrogation by police.
In Celester, the police had a warrant to arrest the defendant for murder when his attorney advised him “that he should tell the truth if he gave a statement,” but did not give him any advice about whether or not to make a statement. He did make a statement, which placed him at the scene of a shooting and was used against him at his trial. The Supreme Judicial Court found that although the federal constitutional Sixth Amendment right to effective assistance of counsel does not come into play until arraignment, under Article 12 of the Massachusetts Declaration of Rights, a defendant who invokes his right to counsel at a custodial interrogation is entitled to the effective assistance of counsel. Where an attorney’s advice is not “at least minimally competent” the defendant has not received such assistance. Where the defendant’s attorney had not discussed with him “his right against self-incrimination or any of the risks inherent in giving a statement to the police,” or made “an effort at a minimum to understand the factual basis for the murder charge,” he did not provide effective assistance.
Advising a defendant in Celester’s situation to remain silent would be an easy call for most defense attorneys. In a very rare case it might make sense to have a defendant make an exculpatory statement to police, but usually the benefits of doing so are doubtful and the risks high. In any case, detailed investigation would be necessary before reaching taking the risk, and Celester’s attorney had conducted no significant investigation. In civil cases, though, whether to invoke the Fifth Amendment privilege can be a more difficult call. A witness in a civil case has the Fifth Amendment right to remain silent if she or he chooses, but the choice to invoke that right can result in a negative inference. That’s the dilemma that Bill Cosby faced when first confronting the possibility of criminal charges for allegedly sexually assaulting Andrea Constand, while also facing her then-pending civil lawsuit.
Cosby recently outlined the situation in a fruitless attempt to convince a Pennsylvania court to dismiss the charges, including aggravated sexual assault, that he faces there. In his motion, he argued that a former District Attorney had promised not to prosecute him so that he would be free to testify in the civil suit, and that in reliance on that promise he had proceeded to testify at a deposition in Constand’s lawsuit. If Cosby had invoked the Fifth Amendment when questioned at his deposition in Constand’s suit about whether he gave Constand drugs, for example, the court (or a jury) could have inferred that he did so because his answers would incriminate him, and held that belief against him in reaching a decision on Constand’s allegations. To defend himself against the civil suit, then, it was probably in Cosby’s interest to testify—but doing so gave prosecutors information that they will certainly use against him at trial, now that they have changed their minds about prosecuting him.
Cosby’s case illustrates the need to think long-term about possible criminal exposure; prosecutors typically can and do change their minds about whether to prosecute if new evidence—like the defendant’s incriminating statement—emerges. (Not too surprisingly, the court didn’t find that authorities’ change of heart, unexpected and inconvenient as Cosby may find it, warranted dismissal of the charges.)
These are dilemmas that we regularly assist our clients to resolve. Students facing accusations of sexual assault in campus Title IX matters, for example, must sometimes choose between remaining silent—and increasing the risk that the school will find them responsible and take disciplinary action against them, including possible suspension or expulsion—or making statements in their own defense that police and prosecutors may twist against them. While it isn’t possible to give abstract rules about whether to remain silent that fit every situation, Celester—and the Cosby case—illustrate that it is essential to carefully weigh risks and benefits when deciding whether to take advantage of the Fifth Amendment’s protection.