The Silent Pathway to Posting Bail

Here’s something you’ll never, ever, ever find in a police report:

“After a friendly chat with this likable fellow, I realized everything was O.K. and I had made a mistake to attempt to arrest him in the first place.”

The series of steps that lead to an arrest are many and varied. The circumstances may be completely benign or glaringly biased. But the unfortunate truth is that, once initiated, there is pretty much nothing you can say that will prevent the officer or officers from going through with it.

If you happen to be in the position of being arrested, you’ll know that every fiber of your being is urging you to attempt to change what’s happening. Most people in this situation realize that force won’t work. If you happen to be able to overpower the officer that has you in their custody, it it an inevitability that more force will arrive imminently to complete the task.

But most people are talkers. Most people start exclaiming their innocence, or the unfairness and injustice of the situation. Most people instinctively believe that if the officer had more or different information, that they would stop what they were doing and back off. And everyone who believes this is wrong.

The lesson: you’ll never talk your way out of an arrest if the officer has decided to proceed. Talk less, or don’t talk at all. It’s your right – exercise it.

The right to remain silent has been embedded in the core of the legal system for hundreds of years, and is common to most developed societies. It is explicitly stated in the 5th Amendment to the U.S. Constitution – “nor shall be compelled in any criminal case to be a witness against himself …”, and it’s main objective is to ensure that an individual is not compelled to be a witness against himself or herself. It’s importance can also be implied from its position at the very beginning of the Miranda Warning – “You have the right to remain silent …”.

A more implied consequence of the right to remain silent is the right not to be considered more likely to be guilty of a crime by virtue of the decision made by an individual to remain silent. This may feel counter-intuitive, but our legal system obliges judges and juries to avoid implied guilt on the basis of silence in order to protect this fundamental constitutional right.

Fight your case, not your officer.

You’ll hear this advice from almost every lawyer you come across under almost all circumstances having to do with arrest. Don’t talk. Stay silent. Hold your words. Save your arguments for when they matter, and don’t risk making further trouble for yourself when there is no benefit for you in doing so.

This advice comes down to this – in most cases, there is ONLY potential downside to talking when arrested. It is, of course, anyone’s choice to forego this right and declare whatever they want about the circumstances that they find themselves in. And nobody would claim that it is easy to remain silent in the face of apparent injustice, or in response to direct questions from a law enforcement officer.

But for anyone that wants to see their family sooner, that wants to have their arrest and their issue resolved as smoothly as possible, would be wise to hold their tongue while they have the right to do so.