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Even Lawyers Sometimes Forget Their Right to Remain Silent

March 24, 2014

The right to remain silent not only applies during an arrest, but also during the discovery and investigative phases of any alleged crime. Miranda Rights were enacted in the mid-1960’s, requiring law enforcement to advise suspects of their legal entitlement to silence and an attorney. Backed by the fifth and sixth amendments to the US Constitution, these two basic rights protect the accused from self-incrimination. Arising from an overturned case, kidnapping and rape suspect, Ernesto Miranda, claimed police coercion and ignorance of the law. As a result, the Supreme Court of the United State deemed reading Miranda Rights to suspects a necessity to “fundamental fairness,” safeguarding the accused’s constitutionally guaranteed right to due process of the law.

Since its enactment, Miranda Rights have been dutifully recited by authorities to a myriad of arrested suspects nationwide. In an effort to diminish intimidation, coercion, and faulty convictions, Miranda Rights serve a well-intentioned purpose in the judicial process. However, recent years have introduced a significant change in when and how some Miranda Rights are served. Authorities have been known to circumvent protocol by entrapping unsuspecting targets of interest. Rather than arresting suspects and reading them their Miranda Rights, investigators feign roles and scenarios to mentally disarm suspects, thus gleaning information law enforcement may have otherwise been unable to collect.

The urge to speak, and clear one’s name or cooperate with authorities, is an extremely powerful one. Even attorneys can fall prey to the tactics employed by aggressive and skillful investigators.

Take the case of 29-year old Zachary Warren. By all accounts, Warren was a polished, legally pedigreed, and academically accomplished law clerk with a bright future at a prestigious law firm ahead of him. The only problem is that Warren is now also suspected felon. Recently indicted for “cooking the books” in 2010 at the now-defunct Dewey & LeBoeuf law firm, Warren is accused of participating in a scheme with high-ranking cohorts to hide the firm’s financial troubles while helping themselves to hefty bonuses. Interestingly, much of the evidence gathered against Warren was provided by Warren himself. Unbeknownst (and according) to him, Warren contends federal officials created the impression he was participating in their civil investigation as a witness, not a suspect. Prior to his indictment, Warren asserted he was deceived into believing he was helping authorities solve the case when, in actuality, he was building one against himself. There was no arrest, no reading of Miranda Rights, no hostile interrogation, and no overt accusations. He insists there was nothing to signal that the self-incriminating information he freely shared with federal agents would be used against him.

Unfortunately, Warren’s apparent naivety allowed him to be duped by a prosecutorial ploy that involved the “interview” with the SEC. According to Thomas Curran, Warren’s white collar criminal defense attorney, this type of set up unfairly places unwary suspects—who want to cooperate with authorities in good faith—in potentially self-incriminating positions. In Warren’s case, the pendulum swung from authorities using dated, coercive, and intimidating interrogation tactics after an arrest, to authorities using an insidiously executed plan of a likely scenario to ensnare him before the arrest. By design, this strategy precluded authorities’ requirement to deliver Warren’s Miranda Rights, which would have invariably triggered his inclination to seek legal protection. Warren now faces multiple felony charges relating to fraud and conspiracy, though he has maintained his innocence as pleaded not guilty during a recent arraignment. He is currently free on $200,000 bail and expected to fight all charges levied against him.

If you are accused of committing a crime, or simply targeted for questioning in relation to a crime, your best strategy is to remain silent. Quell the urge to “cooperate,” and seek immediate representation from a highly trained white collar attorney. Talking to federal or state authorities may limit your legal options later, so politely invoke your right to remain silent and to maintain an attorney. Do not answer any questions from law enforcement, and only confide in your legal counsel. David Benowitz, along with his team of white collar and federal defense attorneys, can help you build a strong defense strategy aimed at achieving the best possible outcome in your case.