After 49ers defensive lineman Ray McDonald was arrested for domestic assault in August, coach Jim Harbaugh defended the team’s decision not to take action by wrapping himself in the nation’s founding documents.
“[T]his is America, you’re innocent until you’re proven guilty,” Harbaugh said at the time. “I don’t know what more I can say about that and I have great respect for that principle. . . . It’s in the Constitution. It’s in the Constitution. It’s well defined. The Fifth Amendment.”
Harbaugh’s 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) doesn’t match the NFL’s attitude toward the Fifth Amendment. Under the new personal conduct policy, the player has no right to remain silent.
“Because the Fifth Amendment’s 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 employee’s 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 defendant’s refusal to speak in a court of law won’t preclude a prosecution from proceeding and discipline from being imposed. However, because the NFL won’t be honoring the various other Constitutional protections that apply when liberty is on the line (like proof beyond a reasonable doubt), it’s 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.