Tailgating, Tater Salad and Tennessee Football

Reprinted with permission from Cityview Publishing, Inc.

by T. Scott Jones
Law Offices of Banks & Jones

As the weather cools just a bit along the banks of the Tennessee River and the foliage on the slopes of the hills surrounding my alma mater begins to change, it can only mean one thing to a die-hard sports fan. It’s football time in Tennessee, and with that fall spectacle comes all the attendant pageantry of tailgating in and around G-10 and the Vol Navy rafting up next to one another as the Vol faithful prepare to do battle on any given Saturday in Knoxville, Tennessee.

Generally, these events are accompanied by a variety of culinary fixins, not the least of which is tater salad. However, in this article, we are going to examine tater salad from a different perspective. No, not the machinations of preparing that culinary tailgate staple, but the lessons taught by Southern born and bred comedian Ron White.

By now you have surely heard Ron White tell his “tater salad” story on Blue Collar Radio or with his sidekicks Jeff Foxworthy, Bill Engvall, and Larry the Cable Guy, so we won’t belabor your eyes with reading about that instructive incident. Instead we will direct your attention to the prophetic words of Southern brother Ron “Tater Salad” White, and his interpretation of our Constitution.

“Tater Salad,” as Ron is known, proclaims that he had the right to remain silent, but he did not have the ability to remain silent. He’s obviously referring to that condition which often accompanies ballgame Saturdays in the South, and that is regularly linked to the other staples of many get-togethers: alcohol. Be it beer, liquor, or wine, there is something about these liquids and a fan’s ability to “hush that mouth.”

Fortunately, in Tennessee and the United States, our forefathers gave us the right to remain silent through the 5th Amendment to the U.S. Constitution. Though the God-given ability to exercise that right was left to us.

The 5th Amendment was adopted as a protection against the exercise of arbitrary power by the government, and affords all citizens the privilege against compelled self-incrimination. “No person…shall be compelled in any criminal case to be a witness against himself,” and that the accused shall…have the Assistance of Counsel.” This fundamental right outlines the proper scope of governmental power over a citizen, and is recognized as a hallmark of American democracy.

Although the 5th Amendment provides citizens the right to remain silent at all time, the Supreme Court has determined that there are procedural safeguards which must be honored to assure citizens that their right against self-incrimination is protected when subjected to custodial interrogation by law enforcement officials. These safeguards were outlined in the landmark case Miranda v. Arizona, decided by the U.S. Supreme Court in 1966. The protections it affords those who are suspected or accused of committing a crime were created in order to prevent any statements made to law enforcement officers from being the products of compulsion or coercion.

What does all of this mean for an individual who is being questioned by law enforcement?

If questioned by a law enforcement officer, an individual can invoke, or utilize, their right to remain silent at any time. To do so before you are in a situation where you have been deprived of your freedom of action, you should expressly state to the officer that you are exercising your right to remain silent.

Once a person is subject to “custodial interrogation,” they must be afforded the protections outlined in the Miranda decision before being questioned. Custodial interrogation is questioning initiated by law enforcement officers, and occurs not only when an individual is physically taken into custody (for example, being interviewed at the police station), but any time a person has been deprived of his freedom of action in any significant way. If an individual is the subject of custodial interrogation, the protections outlined in the Miranda decision mandate that certain warnings are given by law enforcement officers before they question an individual.

Once a person has been deprived of their freedom of action, the following procedural safeguards must be followed:

• The individual must be informed of their right
to silence

• The right to silence is continuous and does not end
unless the individual being questioned indicates
that they wish it to

• The right to silence can be invoked at any time by
the individual being questioned

• The individual must be informed that any
statement that he makes may be used against him
as evidence in a court of law

• The individual must be informed that they have
the right to the presence of an attorney
These warnings may sound familiar, as most people have seen them recited on television numerous times. However, do not let familiarity with the wording make you lose your ability to appreciate the importance of what is being said: law enforcements officers are apprising you of your rights, and it is important that you understand what those rights are and how you can utilize or waive them.

How do these rights come into play if you are the subject of questioning by a law enforcement officer?

An individual may waive (or voluntarily give up) their right to silence and decide to speak with law enforcement officers without the presence of an attorney. However, if they decide to do so, this decision must be made knowingly, voluntarily, and intelligently. A decision to waive this right must communicated to the law enforcement officer so that they are aware the person is voluntarily giving up this right.

If an individual does waive the right and decides to talk to law enforcement, it is important to know that this decision is not permanent - they can decide to stop answering questions at any time during their encounter with law enforcement. This can be accomplished by telling the officer that they no longer wish to speak to the officer or to answer questions, and are exercising their right to remain silent.
Individuals should also know that if at any time they tell a law enforcement officer that they want to consult with an attorney before answering any questions there can be no further questioning from the officer. Likewise, if an individual has begun answering questions and decides that they wish to have an attorney present, they should inform the officers that they wish to consult with an attorney before answering any more questions and all questioning should cease until an attorney arrives.

Important Reminders:

• The 5th Amendment provides citizens the right to be
free from compelled self-incrimination

• Individuals have the right to remain silent when
questioned by law enforcement officials

• If law enforcement officials subject an individual
to a custodial interrogation, they must give them an
adequate warning about their rights before they
question them
• Right to remain silent
• Anything you say can be used against you in
a court of law
• Right to have an attorney present

• You can assert your right to remain silent at
any time

• You can waive your right to remain silent at any time

• Even if you have already answered questions, you
can still assert your right to remain silent

• Even if you have already answered questions, you
can still assert your right to have an attorney present
at any time

• Once you have asserted your right to remain silent
or to have an attorney present, questioning from law
enforcement officers should cease

So, if you find yourself in a predicament, recall the lesson learned from “Tater Salad.” Keep these tips in mind, and you should be able to effectively exercise your right to remain silent.

T. Scott Jones is Managing Partner at the Law Offices of Banks & Jones, where the attorneys practice in many legal areas, including Personal Injury and Criminal Defense.