You Have the Right to Remain Silent
Video Transcribed: My name is Brian L. Jackson and I’m a Tulsa Father’s Rights Attorney. Today, I’d like to talk to you about a somewhat difficult conundrum that can come up sometimes in domestic litigation. In the case of divorces and sometimes protective orders as well, where one or more individuals involved find themselves subject to both a divorce action and a protective order action, and also criminal charges, all arising from the same set of incidents.
I think everyone who is listening to this is going to be familiar with the old Miranda warning. You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford one, one will be afforded to you by the courts. It’s so well-known it’s almost a cliche. You see it all the time on police dramas, from Law and Order to NCIS. It’s almost a cliche.
In criminal court, you do indeed have the right to remain silent and you can’t be made to testify and, furthermore, in criminal court, that right extends as far as the state cannot even use your silence against you as evidence of your guilt.
That’s a criminal court. In civil court and family court, it’s a different situation. You do indeed have the right to remain silent. The court can’t compel you to answer questions that might incriminate you in civil court. The problem comes in with if you invoke your right to remain silent, there is the authority that stands for the premise that that silence could be held as evidence of a particular fact.
For example, if you’re in protective order court and you are called to the stand by the opposing party and they start to cross-examine you about facts surrounding, let’s say, an alleged domestic assault and battery, obviously, you’re going to plead the fifth if you have pending criminal charges. That would be what a smart person will do, but the judge in that protective order court may choose to use your silence as evidence of the fact that you may have indeed committed this act.
Now, there’s also some legal authority in Oklahoma that stands for the premise that in an extreme case, an individual should not be forced to choose between their constitutional right not to incriminate themself and the rights at issue in the civil case. Now, in this specific case, it was a deprived case where the individual was facing losing their children because it was a termination trial. However, that logic could be applied in other contexts. Nevertheless, it does create a difficult conundrum. What should you do?
Well, the short answer is you want to get a lawyer and a good one because what the lawyer will do is they’re going to go into court and say, “Judge, my client has these criminal charges pending. Obviously, he’s not in a position to defend himself right now because he’s going to be restricted and testifying, therefore we’re going to request a continuance. We’re going to pass this off until the criminal matter is resolved.”
Now, that may mean some consequences that aren’t 100% something you like, because it may mean it could a continued protective order for example, but it does protect your rights because you can do that without admitting anything. You don’t admit that the protective order was necessary, you just pass it so that you can deal with your criminal mess.
If it’s a frivolous criminal charge and a frivolous protective order, obviously you want to handle the criminal charge first because it carries more serious consequences, but you also don’t want to get screwed in protective order court. Now, what about child custody? Yes, you can get it continued, but the longer you go without… The court may come back and say that fine, but you don’t get to see your kids.
Again, this is where you need a good lawyer. A good lawyer is going to argue, “Okay. We want some kind of contact with the kids. It may be supervised for a while, but we want some kind of contact with the kids, and we want to put off that hearing on the merits until such time as your criminal charges are cleared up.” This is important that you have a lawyer because the lawyer is going to be able to approach the judge in a way to explain to the judge with the proper legal authority, “Look, this is why.” But there is a way to go get out of that mess if you have good representation.
Now, if you do find yourself in a situation like that, that’s a serious situation. Anytime you’re facing criminal charges, it’s a serious situation, but if you’re also looking at a protective order or a situation involving your kids and your right to see them, you definitely want legal representation and you want good legal representation.
Our firm works with fathers who find themselves in this situation frequently. It’s unfortunate it is frequent. In many cases the allegations are exaggerated and they can be put to bed, but if you need help with a situation like this, you need to go to dads.law immediately and talk to one of our attorneys. We can help you out. We can help get you out of that mess and do it in a way that doesn’t involve you losing rights.
My name is Brian L. Jackson, I’m a Dads’ rights attorney in Tulsa, Ok, and we’ve been talking about the right to remain silent and how it differs between criminal court and civil court.