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Robert S. Duxstad
Daniel P. Bestul
Lance A. McNaughton

Case Notes: The Value of Silence When Talking to the Police

Posted: 12.17.2013  |  Author: 

“Silence is golden.”

 

“If you don’t have anything nice to say, don’t say anything at all.”

 

“It is better to remain silent and be thought a fool than to open your mouth and remove all doubt.”

 

“You have the right to remain silent.”

 

There is a reason why we need so many aphorisms telling us to keep our mouths shut: it’s not the natural thing to do. But the benefits of fighting the urge to talk can be substantial; after a recent decision of the Wisconsin Supreme Court, keeping quiet at the right time can keep you out of jail. In Wisconsin v. Reed, 2005 WI 53, the Wisconsin Supreme Court held that telling a law enforcement officer you didn’t do what he accused you of doing – a so called “exculpatory no” – constitutes obstructing an officer, an offense under the Wisconsin Criminal Code. This is a new interpretation of this law; previously, Wisconsin courts had suggested that the “exculpatory no” was protected under the 5th Amendment protection against self-incrimination.

 

Factual Background

 

Mr. Reed’s first contact with law enforcement was along the side of the road; he was the only occupant of the car, and, at the time the trooper came upon him, he was seated on the passenger’s side and appeared to be intoxicated. However, the trooper had previously driven past the car and seen someone sitting in the driver’s seat. When the trooper interviewed Reed, Reed denied that he had driven the car. He claimed that a person by the name of Tiller had been driving but had walked away from the scene.

 

When contacted, Tiller denied he had been driving the car; as a result, Reed was charged with obstructing an officer.

 

The Court’s Decision

 

The Supreme Court decision focuses on whether Reed committed a crime by telling the officer, falsely, that he had not been driving. The Supreme Court concluded that simply giving a law enforcement officer false information, with the intent to mislead the officer, is a crime; that includes denying something you actually did.

 

In a concurring opinion, Chief Justice Abrahamson noted this new rule can produce some strange results. She gave the example of a driver who is stopped for a civil speeding violation, an offense punishable only by a $25 fine. If the driver is asked whether she was going over the 35 mile an hour speed limit and says “no”, she could theoretically be prosecuted for obstructing, an offense that could result in a fine of $10,000 and a sentence of up to 9 months in jail.

The majority of the Court recognized the risk, an also recognized that people can provide mistaken answers to police questioning. The majority insisted, however, that mistakes are not false statements made with the intent to mislead the police, and legitimate disagreements about what the facts really are would not be considered crimes. The Court’s majority, however, held that there was no “exculpatory no” found in the law enacted by the Legislature, and so simply denying guilt, with the intent to mislead a law enforcement officer, is a crime.

 

The Bottom Line

 

Honesty, of course, is the best policy. However, most folks, should the find themselves in the position that Mr. Reed found himself in, are going to want to say something to the law enforcement officer; and most folks are going to feel tempted to shade their statements a little. While it may seem both unnatural and illogical, the best course of action in this situation is simply to keep your mouth shut.

 

Bob Duxstad is a Wisconsin attorney practicing primarily in Green and Lafayette Counties. He can be reached by e-mail at duxstad@duxstadlaw.com.

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