In a recent blog I discussed the importance of remaining silent during on OVI investigation. A recent US Supreme Court provides another scenario that buttresses that advice.

The case, Kansas v. Ventris, involved the use of an informant to impeach the testimony of a defendant who denied involvement in a murder. Prior to trial, the police placed an informant in the same cell as the defendant instructing him to “keep [his] ears open and listen” for incriminating statements. According to the informant, the defendant admitted his involvement.

Ordinarily the use of an undisclosed informant used by the police to elicit incriminating statements is in violation of a defendant’s Sixth Amendment right to counsel and is subject to suppression.

The Ventris case carved an exception to that legal tenant. The exception is as follows: If the defendant takes the stand, the informant’s testimony, concededly elicited in violation of the Sixth Amendment, is admissible to challenge the defendant’s inconsistent testimony at trial. In other words, although a statement made by a defendant is ordinarily excluded due to a violation of the defendant’s right to counsel, the statement is admissible to impeach the defendant if the defendant takes the stand and makes a statement inconsistent with that made to the informant.

Applying this case to a typical OVI scenario, you have remained silent during the initial stop and you remained silent during subsequent road side interrogations, during the drive to the police station and during questioning at the station. You are placed in a jail cell with another individual who, in fact, was placed there to elicit incriminating evidence. You admit to him you were driving drunk. He tells the officers what you said. You take the stand and deny you were OVI. Under the Ventris case, the informant’s testimony is now admissible to impeach your testimony!

REMAIN SILENT.

There’s an old saying: “Better to keep your mouth shut and allow people to think you’re stupid than to open your mouth and remove all doubt.” The same can be said for a Defendant’s propensity to talk thinking that they can somehow talk themselves out of an arrest.  In the vast majority of cases this is simply untrue.  In fact, the arresting officer wants the individual to keep talking hoping to obtain inculpatory evidence against the them.

Two recent cases exemplify the importance of keeping quiet.  The first was discussed in my prior article, Recent Court Decisions Expand and Detract Defendant’s Rights.  In that article, I examined the case of Montejo v. Louisiana, a US Supreme Court case that permitted police officers to continue questioning an arrestee even though they know the arrestee is represented by counsel.

Another case, heard in the 11th Appellate District of Ohio (Geauga County) further demonstrates the necessity to “remain silent.”  In that case, the court examined an officer’s decision to conduct roadside sobriety tests.  In its opinion, the court discussed factors that must be considered in evaluating a justification for requiring the Defendant to submit to field sobriety tests (tests used by police to determine whether the Defendant’s physical and/or mental capabilities are impaired).  The court outlined eights factors to be considered.  Of those eight, three require the Defendant’s statements:  impairments of the suspect’s ability to speak, the suspect’s demeanor (belligerent, uncooperative, etc.), and the suspect’s admission of alcohol consumption, the number of drinks had, and the amount of time in which they were consumed, if given.

Simple math, shows that 37½ % of the factors involve the Defendant’s oral statements.  By remaining silent, the factors used by the officer are significantly reduced making it more difficult to justify the use of field sobriety tests.

Both cases demonstrate the importance of silence.  You have no obligation to respond to the officer’s inquiries and, more importantly, you have no obligation to respond to any questions without benefit of counsel.  Silence might be awkward, but may prevent an OVI conviction.