Court-Martial Trial Practice Blog
As a trial and appellate lawyer, I pay attention to word and phrase choices because of the potential effect on the reader or listener. You may be familiar with the saying, ‘it’s not what you say (write) but what the other person hears (reads).’ The point is that the listener may interpret what you have said differently and perhaps adversely. “The same phrase said in different ways can mean very different things. That is partly because perception is reality. So even if you say something that feels sincere to you, the person could hear it completely differently, and that becomes their reality.
James J. Duane, reminds us of the need to pay attention to word choice in his article, “The Right to Remain Silent: A New Answer to an Old Question.”
There is no official language that a witness is required to employ when invoking the privilege against self-incrimination. As one federal circuit court recently observed, “A witness’s answer could range from ‘I refuse to answer on the ground that my answer may tend to incriminate me’ to the more mundane ‘On the advice of counsel, I decline to answer.’” Evans v. City of Chicago, 513 F.3d 735, 740 n.4 (7th Cir. 2008).
One point the author makes is that the usual language implies the person is guilty but refuses to admit it. While that may not be admissible in court (Duane offers examples where it could get to be evidence), it casts a pall over the investigation.
Duane suggests one option is:
“On the advice of my lawyer, I respectfully decline to answer on the basis of the Fifth Amendment, which—according to the United States Supreme Court—protects everyone, even innocent people, from the need to answer questions if the truth might be used to help create the misleading impression that they were somehow involved in a crime that they did not commit.”
He suggests the expanded language is better than just saying “I decline to answer based on my Fifth Amendment right to silence.” I would add that should you invocation become “evidence” either deliberately or accidentally, the broader language would go over better with the Members (jury).