Everyone knows the Miranda warning. Even if you don’t know the legal history of Ernesto Miranda and his Supreme Court case, you have very likely heard at least one fictional police officer recite the words “you have the right to remain silent” on television.
The Fifth Amendment recognition of a criminal defendant’s right to avoid testifying against themselves is one of the bedrocks of our legal system. It is the foundation upon which our system of justice compels a prosecutor to prove their case rather than to simply threaten a suspect.
This legal principle is instructive in other legal circumstances, especially in the minutes and hours following a traffic collision.
Most drivers are aware of the potential financial pitfalls of a car accident. The legal details, however, are not so easily understood. Even if there are few or no grounds for the police to build a case for ticketing or charging a driver with a crime after an accident, civil considerations remain which are not as easily defended against.
Insurance companies not your own will account for most of these considerations.
Simply put, any accident can expose you to both criminal and civil liability, and the richest source of evidence suitable for convicting you and/or establishing your civil liability will come from your own words.
Even if you are an attorney, you should know better than to go on the record until such time as counsel can objectively evaluate the legal situation. This is especially true when speaking to any insurance company, especially one representing the other driver or drivers.
Naturally, if you are confronted by the police, you will invoke your Fourth and Fifth Amendment rights and keep your mouth shut. But if you are confronted by an insurance company, what should you do?
The answer is you should offer no testimony, statement or answer any questions until you have consulted an attorney. Once you go on the record, you will not be able to contradict yourself at a later date without damaging your credibility. Insurance companies will sometimes treat the situation like a crime scene and try to get statements from everyone as early as possible, hoping to establish some material fact they can use to avoid their own liability and assign blame.
You are the person they would most like to blame. Let your attorney do the talking.
If you speak with an insurance adjuster, it is quite possible and even likely that person may later be called on to testify against you. While in a criminal setting their testimony can sometimes be challenged as hearsay, a civil proceeding may not grant you the equivalent defense.
Any question you answer immediately qualifies the person asking that question as a witness to the accident. While most people want to tell the truth and do everything they can to help, there is no way for the average person to evaluate the potential legal ramifications of what they say at an accident scene or in a post-accident interview. What may seem like an innocuous and truthful statement could implicate you or entangle you in civil or criminal liability you have no knowledge of at the time.
Don’t create witnesses. Answer no questions unless you are legally compelled to do so.
Know Your Rights
When you take your story to your attorney, you will gain a powerful tool called “attorney-client privilege.” Privileged conversations and the exchange of documents, photographs or other information are presumed confidential and can only be divulged under specific rules of evidence. Neither you nor your attorney can ever be compelled to reveal privileged information.
It is for this reason you should seek out qualified counsel as quickly as possible. While you shouldn’t respond to questions from potential witnesses against you like opposing insurance companies, your attorney will want to get an accurate account of the accident as soon as possible. Time truly is of the essence.