No right to remain silent when it comes to CPS
Rights afforded to criminal defendants are not afforded to others, and that needs to change.
Above is part of an official notice from the Illinois Department of Child and Family Services (DCFS) to open an investigation.
It states in part, “You can refuse to be interviewed, however, if you refuse, your refusal could affect the outcome of the investigation and could be used against you. {emphasis mine}”
The fifth amendment states.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, {emphasis mine} nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
So, the rules governing Child Protective Services (CPS) are diametrically opposed to those of the Constitution, as it applies to a criminal defendant. That’s because parents investigated by CPS are not technically criminals.
The government is not allowed to draw the jury’s attention to a defendant who chose to remain silent. This recently came up in an appeal of Aaron Hoard’s second-degree murder conviction.
In Hoard’s case, the prosecutor made a reference to Hoard remaining silent in a police interview- as is his right- and this should have immediately led to a mistrial.
Instead, Judge Steven Shaffer overlooked the prosecutorial misconduct. The Appeals Court acknowledged the prosecutorial misconduct and Shaffer’s error but called it a harmless error by reaching into the minds of the jury and determining their verdict would have stayed the same even without the error.
It’s not a perfect system, but the right to remain silent is supposed to be sacrosanct, and not only do defendants have that right, but prosecutors aren’t supposed to be allowed to use their silence against them.
Obviously, parents being investigated by CPS have no such right.
Why do we have the right against self-incrimination? Before I explain, I’d like to introduce one of the best Twitter handles @badlegaltakes
In documenting the worst legal takes on the internet, Bad Legal Takes often exposes the misinterpretation of exercising your fifth amendment right.
Despite this common misconception, the fifth amendment is not only for the guilty but for the innocent as well. Cops and prosecutors love to spin and twist what people say, and someone trying to exonerate themselves of one crime can talk themselves into another very easily.
Law enforcement has many tools in their arsenal, and they don’t need the cooperation of the suspect to find enough evidence to convict. As such, we have a fifth amendment.
We have no such right as parents dealing with CPS, and that needs to change.