BARRY BONDS, PENN STATE AND THE FIFTH AMENDMENT

by James W. McNew December, 2011

"No person . . . shall be compelled in any criminal case to be a witness against himself."

It never ceases to amaze me that people being investigated for commission of a crime end up incriminating themselves simply by speaking when they had no obligation to do so. Either many do not understand that they have a constitutional right to not say anything or their arrogance leads them to believe they can lie and get away with it. The fact is that many persons under investigation would be better served by not saying anything at all.

Take Barry Bonds, for example, who was recently sentenced for "Obstruction of Justice." This sentence comes after years of investigation and millions of dollars being spent by the government and an acquittal after he was first tried for "Perjury". What happened? The government, in Mr. Bonds' trial for "Perjury", was unable to persuade the jury that Mr. Bonds lied while under oath. When Mr. Bonds was tried a second time on the charge of "Obstruction of Justice", the government did convince a jury that he made material misrepresentations during the course of the investigation. The point here is that neither trial would have taken place had Mr. Bonds simply exercised his Fifth Amendment right to not incriminate himself and remained silent.

At Penn State a very similar situation is developing. The former Athletic Director and the Vice President of the University are both charged with "Perjury". What they allegedly did was go before a grand jury and give false statements under oath. Although these two men are presumed innocent until they are convicted, they would not be in their current situation had they simply chosen to exercise their right to remain silent and not testified before the grand jury. By testifying when they had the right not to do so, they potentially incriminated themselves.

In both of these cases, Mr. Bonds and the Penn State administrators were represented by counsel, which makes these particular cases even more troublesome to this writer. Why put your client in a position to say anything when, if your client exercises his or her Fifth Amendment right, he or she does not have to say anything at all? In my opinion, it was arrogance in both of these cases that got in the way of common sense and effective representation.

What are we to take away from these two cases? It is plain and simple: you must not lie or make misrepresentations when either being questioned by law enforcement authorities or when having been placed under oath. If you would potentially incriminate yourself by telling the truth, you can assert your Fifth Amendment right to simply remain silent. In other words, do not say anything without first seeking legal advice.

In my many years of practicing criminal defense, I without exception do not allow clients to make any statements to law enforcement authorities without first ascertaining what it is my clients have to say. It is only then that I have the ability to determine whether my clients may, simply by speaking, unintentionally incriminate themselves and I then have the ability to advise them to simply remain silent.

There is an increasing number of both state and federal agencies that now have the ability to investigate almost every aspect of American life. Therefore, the odds of becoming involved in a criminal investigation either as a witness or as a suspect are also increasing. Most Americans believe they have a moral obligation to cooperate with law enforcement agencies, and we do have such an obligation. However, the moral obligation to cooperate should not be confused with the legal right to say nothing until first obtaining legal advice. The risks of unnecessarily ending up charged with a crime are too great to forego obtaining sound advice about how to proceed.