The crucial part of the fifth amendment and similar rules is - not only can you refuse to testify in court when you are the defendant - but the court is **not allowed to draw inferences **from that refusal. (Nor from records of an interrogation where you chose not to answer) Whereas if you are in a court system where you must testify, and when asked “where were you on the night of the 17th?” and you say “I’m not going to answer that” then that is an additional piece of evidence against you.
It would perhaps be more precise (and less provocative) to say that America does not have an unqualified right to remain silent. This thread suggest that there’s a lot of that going around.
Here?
If you dont testify, you could be considered guilty. Or you could be jailed until you testified.
Yes, that is fairly common, iirc.
:eek: And we though Japan was a modern Democracy. Oh well.
My Law & Order legal education:
You have the right to remain silent during interrogation. You have the right to not answer the police when they ask you questions, whether you are the suspect or a witness. Since this is your right, you cannot be charged with obstruction or anything if you refuse to answer.(You can be charged if you give false answers) Your refusal to answer questions when interrogated*** cannot be used against you*** - cannot be mentioned in court as an indicator that you may be guilty.
You have the right to not testify at trial if you are the defendant, and again also no inference can be taken from it.
If you are a witness at someone else’s trial, on the stand you*** must ***testify - but you can decline to answer any question by “pleading the fifth” if the answer legitimately forces you to incriminate yourself. And then, if you are charged, this pleading cannot be mentioned as evidence against you. (And then, you can’t be forced to testify at your own trial)
There are some limits. If you choose to testify at your trial, you cannot plead the fifth in relation to the charges; i.e. you can’t get on the stand, say “I didn’t do it!” and then refuse to answer any more questions. Having agreed to testify, you must answer all questions.
The USA has a fishing expedition process, AFAIK no longer used in the civilized world, called a “Grand Jury”. Anyone can be called and must testify since at that point nobody is on trial, although they can plead the fifth for any answers that would incriminate. The jury hears only the questions the prosecutor wants them to hear, the witnesses (including the possible defendant) have no right to have their own lawyer present to ask other questions that might be exculpatory; nobody is allowed to reveal what happens in the Grand Jury hearing; then the jury proceeds to indict whomever the prosecutor wants, including the infamous ham sandwich. (Obviously, for the crime of not being kosher.) The prosecutor then waves an indictment for 10 life sentences at the defendant to order them to plead guilty and take 10 years instead.
If a witness is granted immunity for the crime(s) they plead the fifth on, then they must answer truthfully under penalty of perjury, since their answer cannot be used against them. Often this immunity is offered to an accomplice to get incriminating testimony on the main target.
IANAL, but I believe you can say exactly that “I didn’t do it!” and no more.
Having been on one, no they dont hand down a true bill for everything*, and the GJ can indeed ask their own questions, even of the DA. When we started asking the ADA a lot of questions, he withdrew the charges.
- just almost everything.
Then we need to hear from a real lawyer.
My understanding is that - on the stand, testifying at your own trial - you either answer all questions or don’t take the stand. If you refuse to answer while on the stand, the jury can consider that fact when deliberating. (Whereas if you don’t take the stand they can’t read anything into that)
The expression I recall is “opening the door”. (It has more general application). Once you open a topic, you can’t provide selective testimony, you have to answer all questions. So you cannot say “I didn’t do it” and then refuse to explain your blood-spattered clothes and smoking gun, or expand on your alibi.
Of course, while being interrogated, you can say or not say whatever you want, provided you do not lie to police to misdirect or obstruct their investigation.
It would be nice if this were true, but it is true only in pretty narrow ways.
Here’s Salins v. Texas (2012).
Better shut up entirely, because if you answer some questions about stuff that you’re not guilty of then clam up when they ask you about a crime, they can introduce that as evidence.
There are also a number of cases where you have to really explicitly invoke the right to remain silent or it doesn’t count. It’s a fucking minefield. Whenever this comes up, it’s worth it to link to the Don’t Talk To The Police video.
Yes, Salinas seems to fall under the “he opened the door” category. And yes, the minefield is extremely tricky from what I’ve read - you may have to explicitly say that you want a lawyer and won’t answer questions without one. OTOH, I’ve heard of conversations started by the officers transporting a prisoner resulting in confessions being thrown out because this was considered “continuing interrogation after h asked for a lawyer”… which interestingly enough, is what seems to happen in L&O all the time.
“Lawyer - I want a lawyer.”
“If you ask for a lawyer, you’ll be sorry. We can’t help you any more”
(Who falls for that “we can help you”?)
The best television show I’ve seen that portrays the proper procedure for someone being questioned is Better Call Saul.
Mike, an ex-cop, is arrested, quietly accompanies the police to the station. Sits in the chair, and just says “Lawyer.” in response to every question.
I believe this is the distinction. If you do not testify, the jury isn’t supposed to consider that as evidence of your guilt. If you do testify, and refuse to answer specific questions, the jury may use that as evidence of your guilt.
I’m with Dr Death on the Grand Jury process. Grand Jurors get to ask questions, particularly if they think the ADA is being dishonest or overreaching about the request for indictment. Having been on a GJ, I didn’t feel at all that it was a fishing expedition, more a (somewhat rote) check on the ADA, requiring them to officially document the fact that they actually do, yes, have evidence that the accused did something illegal.
I get a kick out of those shows where the police interrogation includes “if you tell us, we can make it easier for you” and assorted other promises. The police can’t make any deals, and all they can do is report what they found to the prosecutor who gets to decide charges, what the state will ask for in penalties, etc.