Your Right Against Self-Incrimination Is More Fragile Than You Think
Most people are familiar with their right to "plead the fifth" and know that they can refuse to incriminate themselves while sitting in the interrogation room of a police station or while on the witness stand in court. Most people don't realize, however, that preserving their right against self-incrimination actually requires some effort and a little understanding of how the law works. This is what you should know.
Always Assume That Someone Is Listening
One of the fastest ways to destroy your credibility and your defense if you're suspected of a crime is to say the wrong thing to the wrong person. Even just saying something at the wrong time can drastically hamper your ability to avoid being convicted of a crime.
For example, while most people aren't likely to talk to themselves about crimes they may have committed while wearing live microphones, with their every word being recorded, it happens. More commonly, people talk about their cases to their parents, siblings, spouses, and close friends while they're on the phone at the jailhouse - not realizing that everything they say is being recorded.
In some jurisdictions, prisoners are given minimal warning that their conversations are monitored and in some jurisdictions they aren't given any warning at all. It doesn't matter. You have absolutely no right to privacy on a jailhouse phone unless you're talking to your attorney. Even then, if another prisoner is standing close and hears you, your right to privacy is destroyed.
Even pleading your innocence over the phone could potentially come back to haunt you, because whatever you say could be used to impeach your testimony at trial, should you say anything different later. Don't tell your best friend what happened when you call asking for help finding a lawyer or making bail. Instead, stick with the basics: you're in jail. You need your friend to contact your lawyer and a bail bondsman and get you out.
Assume That Everyone Will Testify Against You
Don't discuss the crime, your situation, or your case unless you absolutely have to discuss it. Generally speaking, that means discussing it with your attorney only. This means:
1.) Don't talk about your case or the charges against you with your cell mates. You have no way of knowing if the person in your cell is a police informant, or just someone who will happily sell whatever information they can get on you to the police in order to secure a better deal for himself or herself.
What does that leave you to talk about? Talk about your current situation. Talk about the lack of reading materials, how much you hate the food, or the game show that you both just watched in the common area.
2.) Don't talk with your friends and relatives about your case. If they repeat what you've said, they can find themselves hauled into court and ordered to testify.
This includes repeating information that your attorney has given you. While your conversations with your attorney are privileged, you lose that privilege the moment that you include a third party in on the conversation. This holds true even if you are just repeating something after the fact.
3.) Don't talk about your situation in emails, letters, or on social media.
Your letters written while in jail are going to be read. Your email can be retrieved (even if you deleted it) and brought into court. The privacy settings on your social media pages don't matter. Everything can find its way in front of a judge or jury and impact your trial or sentencing.
4.) Don't discuss your crime with your doctor or therapist.
If the stress of your situation is causing your anxiety, depression, or some other problem, you may need to see a doctor or therapist. If you do, however, don't discuss the details of your alleged crimes. While there is something called "doctor-patient confidentiality," the laws regarding it are complicated and vary from jurisdiction to jurisdiction. Even therapists have ended up testifying in court against their patients.
Reveal only what you absolutely have to for your doctor make a diagnosis and treat you. If you think that you need therapy and it isn't court-ordered, talk with your attorney before you start so that you understand what the law in your area allows.
It's always safer to assume that the only time that you should ever discuss the allegations against you is when your attorney is present. Don't risk saying anything to friends, family, media, or even trusted professionals like doctors until you've talked to a criminal defense lawyer first.
