Barry Pollack Comments on Supreme Court Ruling on Fifth Amendment Protection in Law360

"High Court Turns Suspect Silence Into Prosecutorial Tool"
Law360
06.17.13

In this article, Barry Pollack comments on the recent Supreme Court ruling that Fifth Amendment protections do not apply to precustody interviews unless explicitly invoked. While the case the decision was based on dealt with a double murder conviction, the implications of the ruling will be felt throughout the legal field.

"There’s nothing about the case that would suggest it doesn’t apply equally in the context of investigations into business crimes or any other white collar offense," Pollack said. "If you are interviewed by law enforcement and you choose to answer some questions and not others," he explained, "you have to be aware that under the Supreme Court’s ruling a jury can be told that they may infer you’re guilty because of the questions you didn’t answer."

Pollack criticized the ruling for ignoring the reality that holding a person's silence against them in court is effectively no different than compelling that person to speak. "It really turns the Fifth Amendment upside down," he said. "Basically, you have the right to remain silent, but if you do we will use your silence against you."

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