New personal conduct policy disregards Fifth Amendment …

After 49ers defensive lineman Ray McDonald was arrested for domestic assault in August, coach Jim Harbaugh defended the teams decision not to take action by wrapping himself in the nations founding documents.

[T]his is America, youre innocent until youre proven guilty, Harbaugh said at the time. I dont know what more I can say about that and I have great respect for that principle. . . . Its in the Constitution. Its in the Constitution. Its well defined. The Fifth Amendment.

Harbaughs respect for the Fifth Amendment (which may not have been quite as strong if the player in question had been a bottom-of-the-roster slappy) doesnt match the NFLs attitude toward the Fifth Amendment. Under the new personal conduct policy, the player has no right to remain silent.

Because the Fifth Amendments protection against self-incrimination does not apply in a workplace investigation, the league will reserve the right to compel an employee to cooperate in its investigations even when the employee is the target of a pending law enforcement investigation or proceeding, the new policy states. An employees refusal to speak to a league investigator under such circumstances will not preclude an investigation from proceeding or discipline from being imposed.

Similarly, a criminal defendants refusal to speak in a court of law wont preclude a prosecution from proceeding and discipline from being imposed. However, because the NFL wont be honoring the various other Constitutional protections that apply when liberty is on the line (like proof beyond a reasonable doubt), its much easier for an employee who remains silent to end up being deemed guilty in circumstances where breaking the silence may have exonerated him.

If the player speaks, however, anything he tells investigators may be used against him in his criminal case. Under the rules of evidence applicable in every American jurisdiction and all federal courts, anything a criminal defendant says in any setting can be introduced against him at trial.

For the NFL, that could create awkward moments, transforming league investigators into witnesses, with subpoenas issued for testimony and any notes or other record of what the player said. So the NFL probably would prefer that the player refuse to cooperate; if the player talks, the NFL eventually will be cooperating in the criminal case, whether the NFL wants to or not.

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New personal conduct policy disregards Fifth Amendment ...