The Right to Remain Silent
Does a societal interest trump a personal right?
In 1910, the Supreme Court declared that "[r]ights declared in words might be lost in reality" if certain corrective actions weren't taken to prevent the manifest erosion of certain constitutional rights. At that time the issue before the Court was the Fifth Amendment's enshrined right to remain silent. In fact, the maxim "nemo tenetur seipsum accusare" has its origin in a protest against the manifestly unjust methods of interrogating accused persons or potential witnesses. Unfortunately, it took the Court another half century in its famous Miranda opinion to finally address the issue of torture routinely being used as an acceptable form of interrogation for witnesses and suspects, and to this day the issue is still not resolved as questionable practices still ensue. Which brings us to a crucial reckoning on the origins of remaining silent when confronted by authoritative figures, and society's interest in prosecuting criminal activity. Which way should the scales lean when societal interests collide with personal liberties and basic enshrined rights?
Years ago there was a man assaulted by a prison gang in the prison unit where I was housed. It was four against one and his alleged crime was snitching on the members of his own gang. I was in the unit where it happened and there was lots of noise from the altercation—shoes squeaking on the cement floors and screams from the target of the assault—but the officer up above didn't hear or see anything. Everything happened in matter of moments and I happened to be standing at the microwave where I was heating up some food. Before the microwave even beeped the altercation was over, and the individuals involved returned to their rooms and closed their doors, which meant that I was the only one in the common area—with the obvious exception of the man with a wooden broomstick protruding from his neck as he bled to death on the floor about three feet from my cell door. As I walked to my room I was careful not to step in the puddle of blood that was inching its way to my door. And once I was in my room I had to make use of some old towels to stuff under my door to prevent his blood from getting in.
As you read this you might be thinking, how could any sane person see someone who obviously needs help and not even be willing to exert the necessary effort of shouting to the guards to let them know that someone is severely injured? I agree, it can seem like a very cold, and, maybe even sociopathic decision. But in prison, to have called for help by informing the guards would have placed me in the same predicament of the man bleeding to death on the floor outside my cell. We often have the luxury of looking at a related predicament and believing that we would have done different, and maybe we would have, but, for me that decision was made long before I ever came to prison for a crime I didn't commit.
When I was in high school I was the treasurer of a student organization called DECA. There were annual leadership conferences, and that particular year it was set for Detroit, Michigan, and though I had met all the academic and program requirements to represent our school at the event, I was prevented from doing so because of a classroom prank, a rogue interrogation, and my subsequent unwillingness to cooperate. As I look back on the issue itself, it can seem like it wasn't such a big deal, but when looking at the current reality of a nation that seems to be breaking at its seams it's often the subtle encroachments on individual liberties that most damage our collective trust in the institutions charged with upholding our most basic human rights. And when trust dissipates is when every man or woman become a law unto themselves, which is the very premise of anarchy.
Are you familiar with the stink bomb vials that look like little Corona bottles? They only measure about two inches, but when broken open they fill the entire area with the most repugnant odor of rotten eggs. Basically, it's a very unpleasant gag. On the morning in question a fellow student had dozens of these little vials in the school hallway and was handing them out to whoever reached out their hand. I accepted one without even knowing what it was, and as I walked to class someone else explained to me that the agenda was for as many students as possible to break these vials in our first hour classes. The classes would all then be evacuated, and with any luck they would be cancelled for the day because everything would need to be aired out. As soon as I understood what was taking place I wanted nothing to do with it, not because I was against a good gag that would potentially get us a free day, but because I had given my word to our club sponsor Mrs. Dwyer that as a board member of our club I wouldn't do anything that could reflect baldly on our club's image.
"Then you shouldn't have taken it," the classmate said as we walked to class.
I offered him the vial, but of course he wasn't going to risk his ability to play at the upcoming game.
"The coach will have me running laps until I vomit if I do something like that," he added.
I understood his predicament, and as we debated who should do what another solution presented itself. There was another classmate of ours named Mateo who was known for doing just about anything for a laugh. I simply walked up beside him, showed him what I had in my hand, and he was ever so eager to take it from there without as much as a word of explanation.
Now, for anyone trained in the law, you might be thinking that as I handed over the vial that I definitely became part of a conspiracy and an accomplice to whatever was about to happen next. But, since I never instructed him on any course of action, I have my doubts, but admittedly I'm no expert. And, assuming there was a conspiracy, then it involved every member of the student body with knowledge of the impending gag—though, admittedly, that in itself doesn't lessen my culpability. So, the class bell rang and we were promptly in our seats as our teacher began to search for any empty seats that would signal an unexcused absence, since she loved to issue detention merits for tardiness. And it was only a matter of minutes before the aforementioned vial was broken, which caused everyone to start gagging—including the teacher who proceeded to vomit which set off a chain reaction—and the whole class evacuated to an outdoor common area where more vomiting ensued. When we got outside I expected to see other classroom doors opening as other students started pouring out into the common area, but as the moments ticked by, nothing happened.
Apparently nobody else had followed through with the plan.
The principal himself, a rather sour individual who had seemingly missed his life calling as a prison or zoo warden, was summoned to the scene. His agenda was simple, he wanted to know who was responsible and he knew which buttons to push with which students to get what he wanted—i.e., laws be damned, he intended to get to the bottom of who did what. There were maybe 30 students in the class and he immediately called on ten students to accompany him into the classroom—yes, the very classroom with the gag-inducing smell and vomit on the floor—one at a time for said interrogation until the student either cracked or vomited, or maybe both. And based on those interviews I was called to his office.
"What happened?" he asked as soon as I was seated before his enormous desk covered in the student files of the lives he hoped to educate.
"I don't know," I lied, still feeling nauseous.
"Why is everyone telling me that you are behind this—prank, or stunt, or whatever you want to call it?"
"I don't know," I lied again.
The problem that Mr. Larrañaga had was that the small vial was discovered on the opposite side of the classroom from where I was seated. And, the teacher had informed him that I had been nowhere near the area of the broken vial. Nevertheless, he determined that I was the one who had masterminded the gag since I wasn't willing to snitch on whoever was behind it. And since I wasn't willing to cooperate he suspended me, and according to school policies, with a suspension on my record I would no longer have the clean academic record required to attend a leadership conference as a representative of our school. Mrs. Dwyer herself was called in to counsel me to tell the truth, avoid suspension, and be returned to my position in the club. But I refused.
Over the years I have shared this story with more than a few individuals and the responses I have received generally fit into one of two categories: the "never be a snitch" category; and, the "you should have just told the truth" category. I found this to be a very interesting outcome, even more so when looking at who the individuals were who responded to my informal survey. For instance, men are far more likely to be a part of the first category; unless, they happen to be men who are white and not members of any group that would give them cause to be profiled or otherwise harassed by the police. Because men in minorities—especially minorities that are Black, Brown, Asian, or Pacific-Islander—are much more prone to be a part of the "never be a snitch" category. The exception to this rule were the white men who grew up in the same neighborhoods as the aforementioned minorities. They, too, are part of the "never be a snitch" category.
My experience with the "never be a snitch" mantra was probably engrained in my psyche before I entered grade school. In my barrio, growing up, there were many unwritten infractions that could lead to an on-sight beating from a bigger kid, but snitches had the special prize of also being forced to eat rat feces, or, even worse, being made excomunicado from everything—the playground, the street, and even the other kids. Nobody would be the friend of a labeled snitch, such a move would gain that kid the same treatment as the snitch himself. I say "himself" because girls weren't always held to the same standard. But, if they wanted to be around us they would mostly abide by our codes; though, when they didn't it was confusing as to what should be done because hitting girls was an offense that would quickly bring down the wraith of God from almost any parent in the neighborhood. All girls knew as much, which always made their acceptance into our social circles precarious at best.
Even in the family, snitching wasn't tolerated. Whatever was missing, broken, or otherwise tarnished it was always better to absorb the consequences as a group than to be ostracized as a snitch. Unless, of course, you wanted to accept responsibility and snitch on yourself to prevent the particular consequences from falling on others, that was considered acceptable. The only problem with that stratagem was that parents didn't always believe that only one of us was ever involved in anything—for them all infractions and disruptions were concerted efforts—so to stand up and say, "I did it," only served to bring down an even harsher punishment on everyone. And, it often depended on who the adult was demanding information or threatening punishment.
These codes of silence follow us into the various realms of adulthood. Where the consequences of breaking ranks and snitching are swift and often fatal. It's not just criminal organizations like drug cartels and prison gangs that demand silence from its members: religious institutions have hidden miscreant priests, pastors, bishops, and the like for centuries; police departments have their "blue wall of silence" where officers remain silent on the misdeeds and corruption that infest their ranks for fear of retaliation; correctional officers earn their "stripes" of acceptance by participating in unsanctioned assaults, and officers who even think of breaking the code are "dealt with."
Even in many professional circles there exist similar, unwritten codes that prevent people from breaking ranks. While law enforcement might opt to use violence or a sudden unwillingness to help a fellow officer in a precarious situation to settle a score, lawyers in legal communities might use the older "excomunicado" method of dealing with uncooperative outliers who think rules and ethics should apply to their profession. Which happens to be something else I'm familiar with.
My second appointed attorney in my appellate process was quite sincere in her unwillingness to present the entirety of my legal claims to the court. She said, "to do what you are asking me would be to call into question the decisions and actions of some very reputable attorneys, and New Mexico is a very small legal community."
In other words, she wasn't willing to represent her client's interests if those interests were to collide with the interests of the fellow members of her professional community. Because to do so would make performing her duties—as they related to other, non-criminal clients—nearly impossible without the cooperation of those other members. It's overly simplistic to look at this behavior and think, "bad apple" or outlier because nobody wants to be rejected from a community as a consequence of their unwillingness to adopt the accepted norms. And while it's certainly frustrating to be on the receiving end of someone's unethical choices, we've all most likely been on the other end.
Granted, my high school principal Mr. Larrañaga wasn't beating students with a stick or whip to elicit confessions from students. But making someone sit in a room with a foul odor until they vomit or confess isn't winning him any humanitarian awards either. He was frustrated by an unsavory prank that greatly inconvenienced a member of his staff, that's easy enough to understand, but his authority wasn't absolute. As Justice Brandeis prudently observed in 1928:
Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for the law…
Which brings us back to the question at hand, what's more important, societal interests or personal liberties? It's not an easy question to answer, but it's one that we must confront sooner rather than later. Because either we are a nation of laws or we're not; either we have personal liberties enshrined as constitutional rights, or we don't. Words scribbled on ancient documents aren't in themselves guarantees if the representatives of our government don't enforce them. And, finally, we have to account for this nation's bloody history of policemen resorting to violence to obtain confessions, which has sowed generational distrust between various minority communities and the authorities who are supposedly there to protect them.
