Fifth Amendment rights must be honored by Virginia judges and prosecutors, says Fairfax criminal lawyer

Fifth Amendment Constitutional rights to remain silent with police are critical for your Virginia lawyer to protect. As a Fairfax criminal lawyer, I know that not all trial judges and prosecutors provide the level of protection that is required by 5th Amendment caselaw, whether from not knowing, misreading, or misapplying the applicable caselaw from the Virginia appellate courts and Supreme Court, or for any other reason. Virginia trial judges are generalists and not all have substantial criminal defense or prosecution experience, which all the more makes it vital for your criminal defense lawyer to have the citations to the applicable statutory law, court rules, caselaw and Constitutional provisions ready to cite to the judge in support of any legal argument advanced by your attorney. The 5th Amendment’s language on your right to remain silent provides: “No person … shall be compelled in any criminal case to be a witness against himself...” Despite that language, I too often hear numerous Virginia assistant commonwealth’s attorneys / prosecutors erroneously claim that pre-arrest silence by a Virginia DUI or criminal suspect is admissible in evidence so long as Miranda does not yet apply, and the Virginia Court of Appeals recently had to step in to reverse a murder conviction that followed a trial judge’s erroneously allowing into evidence the defendant’s confession that followed his unambiguous assertion of his right to remain silent and the law enforcement officer’s (LEO’s) continuing with words calculated to elicit further responses from the defendant about his alleged crime. Paxton v. Commonwealth of Virginia, ___ Va. App. ___ (2024).

The Virginia Constitution and Fifth Amendment protect your pre-arrest silence from being used against you at trial

In Virginia, the prosecutor’s “interest in using [a suspect’s] pre–arrest silence in response to a police officer’s question as substantive evidence of guilt is substantially outweighed by the burden which such practice imposes on the privilege against self-incrimination. Accordingly, we hold that the Commonwealth’s substantive use of the appellant’s silence impermissibly burdened the appellant’s exercise of his privilege against compelled self-incrimination under Article I, Section 8 of the Virginia Constitution and that the trial court erred by admitting the evidence.” Taylor v. Commonwealth of Virginia, 26 Va.App. 485, 499 (1998) (explaining at page 490 that “we apply Fifth Amendment principles in addressing the challenge under Article I, Section 8). Taylor confirms that where, as in Taylor, a criminal defendant’s “constitutional rights have been violated, we will reverse his conviction unless the Commonwealth proves that any constitutional error was ‘harmless beyond a reasonable doubt.'” Taylor (internal citation omitted).

Once you unequivocally assert your right to remain silent with police under the Fifth Amendment, police may not engage in behavior calculated to elicit further discussion by you about your alleged crime, unless you yourself re-initiate discussion

Arrested for suspected robbery, after being arrested and told his Miranda rights to remain silent under the Fifth Amendment and to have a lawyer present, Paxton finally asserted his right to remain silent, as follows: “Paxton: Sir I did not shoot her. [Detective] Baynes: You did shoot her. Paxton: I don’t wanna talk no more.” Despite the double negative of “don’t” and “no more” in formal English reading as “I wanna talk more,” Paxton correctly recognizes that plenty of people speak in double negatives without intending a double negative, in finding that the foregoing was an unequivocal assertion of his right to remain silent. Paxton also correctly reads Detective Baynes’s following subsequent words as being calculated to elicit further talk from Paxton about his culpability: Detective Baynes: “Mmm-hmm, unless you can come up with a reasonable explanation, . . . Paxton: Sir, what else do you wanna know? I’m tellin[g] you everything. Baynes: I wanna hear the truth.” From there, Paxton talked at length with the police, first insisting he did not shoot the victim, subsequently claiming he shot in self defense, and at trial insisting he did not shoot but that he felt pressured by the detective to say he did. Paxton. 

Police interrogate a suspect when an objective observer would view the officer’s words or actions as designed to elicit an incriminating response.

“An officer interrogates a suspect when ‘an objective observer would view [the] officer’s words or actions as designed to elicit an incriminating response.'” Paxton (quoting Thomas v. Commonwealth of Virginia, 72 Va. App. at 560, 583 (2020). “Not every statement by an officer is interrogatory. For example, we have recognized that ‘telling a suspect about the charges filed against him and their corresponding penalties would not reasonably call for an incriminating response.'” Paxton (quoting Thomas at 586). “But we have also made clear that ‘[t]he police may not ask questions, even during booking, that are designed to elicit incriminatory admissions.'” Paxton (quoting Thomas at 583). “Whether an officer’s statement is interrogatory turns on how coercive it is and ‘not strictly the [statement’s] content.’” Paxton (quoting Thomas at 584). As a Fairfax criminal lawyer, I know how important it is for your Virginia criminal lawyer to have Paxton at the ready to argue the foregoing points to your trial judge, and to have the foregoing Taylor Virginia Court of Appeals case to show the full force of the Fifth Amendment that applies even before you are arrested.

How essential is it for my Virginia criminal lawyer to read the Commonwealth’s appellate court opinions?

Criminal law is not stagnant, and particularly not where the Fifth Amendment is concerned. Statutes and court rules keep getting born, updated, amended and repealed. Appellate court opinions keep getting written that clarify, alter and reverse prior court opinions and that explain, limit and even invalidate certain statutes and court rules. As a Fairfax criminal lawyer, I not only know that I must keep atop of these legal developments, but I love doing so, because even if the language of such legal authorities in the abstract can sometimes seem dull, stilted and sometimes even aggravating and offensive, I see reviewing and analyzing the law as akin to panning for gold, where even gems can sometimes be found in what otherwise seems akin to fecal matter.

Fairfax criminal lawyer Jonathan Katz never sees any defense as a shoe-in, but instead overcovers risk on your behalf by fully preparing and executing your best possible defense under the Fifth Amendment and beyond. 99% of Jon Katz’s law practice is devoted to obtaining great results for you in defending those accused of violating the Virginia DUI, felony and misdemeanor laws. Jon  can usually meet with you within a business day of your contacting us for an appointment. Secure your free in-person initial confidential consultation with Jon Katz about your court-pending prosecution, by contacting his staff at 703-383-1100, info@BeatTheProsecution.com , or by text at 571-406-7268.