Then there’s this - not about the fifth, but definitely about contempt.
I would assume that if you are not legitimately able to plead the fifth (i.e. on the stand in your own trial) then the fact that you did anyway can be held against you?
IANAL, but I would certainly think so. Actually taking the Fifth gives you certain protections that just pretending to take the Fifth would not.
IANAL, but I think that the judge could strike all of your testimony from the record.
AND what many cops on Youtube don’t (or choose not to) understand is that refusing to answer their questions (except identifying yourself YMMV as to the extent depending on the state) in NOT obstruction. It is invoking your 5th Amendment right.
Don’t you have to actually invoke your Fifth Amendment rights to invoke them? Just refusing to answer questions is not the same thing.
Yes but …
You can invoke it by saying that you are not answering the questions. As of yet you do not have to explicitly mention the 5th. What SCOTUS ruled in Salinas was that not speaking was not the same as invoking the 5th and that the silence could be used against you. And in Salinas, the defendant voluntarily went to police and talked opening and only went silent when asked about some evidence. That is very different than when police stop you and question you against your will.
Also, in my state and many others, “obstruction” must involve the use of force or threat of force. Even if I do not invoke my 5th Amendment right and simply remain mute, it is not obstruction. Another element that cops (conveniently) forget when making their threats.
And therefore I am wrong when I said that not speaking was not the same as invoking the 5th?
One of us is confused.
You didn’t say “not speaking”. You said “refusing to answer questions” which could be done by saying “I refuse to answer your questions.” or any number of equivalents. If you meant refusing to answer questions to be synonymous with remaining silent you should have been clearer about it.
I understood that “obstruction” included any act that deliberately (actively) impeded the investigation. Refusing to answer questions is OK, but lying so as to mislead or misdirect cops is obstruction. Hiding or destroying evidence is obstruction. Martha Stewart was convicted, IIRC, of obstruction for erasing an entry in her phone call diary. (Even though she thought about it and re-entered it) Destroying evidence is obstruction too.
Are you sure this is not the case in your state? Or is this a different named crime?
This too - from what I understand, acting weird - i.e. acting like you cannot speak - is unusual behaviour. AFAIK the cops can mention your weird behaviour - “he was there 48 hours and said not a single word”. Saying explicitly you will not answer questions (and then not answering after that) makes your intent clear. The police cannot then testify “he told us he would not answer questions about the crime” with the knowing wink that it must mean the person is guilty.
I would like a cite that saying “I refuse to answer any questions” is equivalent to invoking your Fifth Amendment rights. Salinas v Texas does not say that.
Equivalent in what way? Either way you don’t have to answer any questions. “Taking the fifth” is usually in relationship to testimony (especially hearings and the like), not police interrogation. Although the fifth amendment is the basis for each.
In a criminal case, the prosecution cannot make any reference to the fact that you declined to answer questions, whether or not you say you’re invoking your “fifth amendment rights.” The magic words, to the extent there are any, for policy questioning are “I want to talk to a lawyer before I answer any questions.” The cases where silence has been admissible are distinguishable, because the defendants in those cases did not say anything like “I refuse to answer any questions.” I’m not going to spend any more time researching this right now, but I’m quite certain, that courts would treat “I refuse to answer any questions” as exactly equivalent to “On the advice of counsel, and under my rights outlined in the fifth amendment of the United States Constitution, I decline to answer on the basis that such answers might tend to incriminate me.”
I found the case.
Thompkins did not say that he wanted to remain silent or that he did not want to talk with the police. Had he made either of these simple, unambiguous statements, he would have invoked his “ ‘right to cut off questioning.’ ” Mosley , supra , at 103 (quoting Miranda , supra , at 474). Here he did neither, so he did not invoke his right to remain silent.
Berghuis v. Thompkins, 560 U.S. 370 (2010)(bold added)
We may be getting into GD territory here but ISTM the supreme court said you have to say magic words. Refusing to talk is not sufficient to protect your rights.
Which is weird since your Miranda warning says (among other things): “You have the right to remain silent and refuse to answer questions.”
That’s true. Refusing to talk vs. saying “I’m not talking.” You have to say something, but you don’t have to say “fifth amendment” or anything like that.
From what I read, his is basically the argument “you should have known from my behaviour that I didn’t want to answer and should have stopped interrogating me.” The court says “no, they can keep interrogating you if you don’t explicitly say you are refusing to answer questions.” I mean, in the end he did talk - and stupidly answered a leading question of the “have you stopped beating your wife” type. It’s the same logic as the “lawyer dog” question - if you don’t explicitly say something, the police will not necessarily make (possibly obvious) assumptions that are in your favour if it works better for them to not assume so.
“Q: Do you believe in God.
A: Yes
Q: Do you pray to God?
A: Yes
Q: Do you pray to God to forgive you for shooting that boy down?
A: Yes.”
Thank you for the cite.
I never said lying was ok. There are many videos on youtube where a cop will claim simply not answering questions is obstruction.
There are two issues going on in this thread.
If you refuse to answer questions, the cops cannot use it against you at trial IF you say the magic words. However you can remain silent without saying the magic words when cops are questioning you and that is not obstruction no matter what the cops say.
In many states, when you are pulled over or otherwise legally detained you MUST identify yourself. Not doing so is obstruction or some other charge depending on the jurisdiction. You don’t need to answer questions but you must identify yourself and provide license/registration/proof of insurance.
I wish I had said that.
Oh wait! I did.