Presidents’ Day, Our Founding Fathers and Our Constitutional Protections

Founding Fathers

Most of our Constitutional protections have to do with making sure that our individual freedom of thought, of expression, and of action – all of which are necessary for human dignity and self-determination – are preserved. Our Founding Fathers (many of whom went on the become our presidents, such as George Washington, John Adams, and Benjamin Franklin), having freed themselves from oppression by the Crown and from government actions such as warrantless searches on no legitimate bases, wanted to make sure that safeguards were in place to guarantee the individual would be respected under our new form of government. They were not naive to the overwhelming power of government – and the potential threat of that power. While Miranda warnings are an important safeguard, they are not the only safeguard in place. It is important to note that having agreed to waive your rights (which you should never do, but which often happens) does not mean that your Constitutional protections end at that point.


Yes, an officer can arrest you without your consent. But he cannot, without your consent, either interrogate you or fail to honor your assertion of your 6th Amendment right to an attorney. Specifically, when it comes to waiving your 5th Amendment right to remain silent and agreeing to speak with officers, officers can only interrogate you if you give that power over to them. Why then would anyone actually waive their rights and consent to speak to officers who we must know are trying to extract potentially damaging information? In the abstract, you would think no one would ever consent to interrogation by an officer – but it happens all the time. While you may feel that you can retain power and control in a police interrogation setting, law enforcement officers will use a variety of techniques to try to overcome your free will and extract a “confession”, whether it be the truth or not. What if the officer reads you your rights, you waive those rights because you are sure you can handle this situation, but, as the interrogation continues, you feel you have progressively lost all power and feel forced to tell the officer what he wants to hear? This is a common feeling even for the most educated, most strong-willed, or most self-possessed of individuals facing a police interrogation scenario. The question becomes, at what point does the overarching scenario, combined with the techniques of law enforcement, actually overcome a person’s free will, resulting in a confession that violates your 5th Amendment right to remain silent and/or that is unreliable because it is the product of police coercion?

Some common law enforcement techniques involve acting as though officers are already very sure you have committed the offense, suggesting there is important evidence arrayed against you or perhaps witnesses ready to testify against you. It is important to note that officers are allowed to engage in “ruses”, by which I mean they are allowed to present to you a depiction that is not the accurate state of the evidence against you (also known as lying). Officers will often present a scenario, with which they are attempting to get your agreement as a first step. At the same time, officers may also present you with a dual-edged threat and promise: the promise of leniency if you “confess” or agree with them and, on the other side of the coin, the threat of increased harm if you do not. These promises of leniency are often couched in the expression of how much better it will go for you, with either the court or the prosecutor, if you are cooperative and “tell the truth”. It is understood that this “truth” is the version of events which officers are making clear to you they already know all about. At the same time, there is either an implicit or an explicit threat that failure to do so will result in increased punishment of some kind, or perhaps the “good” cop (if that is the one you are dealing with) will be unable to “help” you or intervene on your behalf. In some scenarios, there are multiple officers present in the room, each of whom is trained and experienced in how to attempt to overcome a suspect’s will and make sure that a confession is achieved.

In some cases, you may be handcuffed to the table, officers may achieve a further psychological advantage by standing between you and the door or standing over you, or through the use of other techniques that are in place for the purpose of psychological intimidation. Also, the interrogation cannot be viewed in isolation; it is necessary to consider the whole experience that the suspect had leading up to it, namely the arrest and the extended period of fear, loss of control and uncertainty in a police-controlled environment before even reaching that interrogation room. You may think that you can regain control through agreeing to participate in the interrogation process and attempting to explain or defend yourself, but the truth is that you cannot at that point. At the same time, the officers are quite sure that they are doing the right thing. Their orientation is to look for and compile evidence of guilt, not evidence of innocence. Further, officers are trained to believe that they have a special ability to detect, in ways ranging from looking at a suspect’s eyes and body language, to the suspect’s choice of words, if the suspect is being truthful or not. And, after all, they just arrested you.

When all the circumstances surrounding your interrogation actually result in a situation where your free will was overborne and you made a statement you would otherwise not have made, your statements or confession are what is called “coerced” and, as such, are “excluded” from evidence in the courtroom. First, your defense counsel can argue that your statement should be excluded as a violation of your 5th Amendment right to remain silent. As a second line of defense, in the scenario where your statement has been admitted into evidence, your defense counsel can attack the reliability of the confession/ statement itself. At the Law Office of Jennifer Zide, we partner with a well-recognized expert with a doctorate in psychology, who specializes in explaining how law enforcement tactics can overcome the will of even the most stubborn of individuals. Among the striking flaws in an unreliable coerced confession may be the lack of what is called a “post-confession narrative” – specifically the details which the person confessing would have known if he or she had really committed the crime. In many coercion scenarios, the officers manage to extract agreement from the suspect – but go no further and gather no information to support the veracity of the confession. Without these details, in the suspect’s own words and rendering his statements believable, there is reasonable doubt as to whether it is a true “confession” or merely agreement with a scenario insisted upon by officers.


In the end, your jury trial is the ultimate expression of respect for your freedom. We empower twelve members of our community – not just one judge – each from different backgrounds and with different experiences and beliefs, to critically examine the government’s case against you as it is put to the test by your defense. The government, in a very real sense, brings its case before the American people (or at least a small microcosm of them), and our fellow citizens, keeping in mind the Presumption of Innocence and the Burden of Proof Beyond a Reasonable Doubt (in place to empower the individual in the criminal justice system), are the ultimate arbiters of justice in that one case. The role of the jurors is to preserve our ideals and also to discharge what can only be termed a duty to their fellow citizen – to give him that benefit of the doubt and also to care about him and his rights as though he were one of their own, as though it mattered not just in this one case, but also to them. And it does.

At the Law Office of Jennifer Zide, your freedom is more than our business; it is our commitment. If you have concerns about the interrogation in your case, call us today to discuss the details. We can help you take your power back.