defendants taking "you have the right to remain silent" to the most absolute extreme?

In My Humble Opinion
1

I’m trying to imagine how this scenario would play out - suppose you have someone who walks into a bank, holds it up, shoots a teller in the shoulder (a non-fatal wound) and escapes with the money. He gets away for a time, hides the gun and money where only he can find it, but is subsequently apprehended (let’s say through witness descriptions, grainy surveillance video in the bank, etc). There’s no “slam dunk” evidence left inside the bank to implicate him (fingerprints, a dropped drivers license, etc).

From the moment the cops pick him up, he never mutters a word. Not a single one. He knows he’s guilty, but there may be juuuust enough reasonable doubt to keep him from being convicted down the line, so he stays 100% silent.

He’s cooperative every step of the way - doesn’t resist the police officers, nothing. Basically, he’s not a pain in the ass in any way, but he never, ever opens his mouth. Ever. Almost like he has no voice box to even speak with. They ask him question after question, but he just gives a blank stare.

Perhaps he’s homeless - he has no job, no car, no real family to speak of. So he doesn’t give a damn what eventually happens to him, he just wants to roll the dice and head down this path and see where it leads.
Maybe I’ve watched too much Dateline over the years to know that the first chink in a defendant’s armor always seems to be inconsistencies in his story, that the cops can pick up on and use to their advantage.

You don’t have that here, because the defendant has no story. He never, ever speaks. To take it to a real extreme, he never even speaks a word to his court-appointed lawyer - he just stares straight ahead the whole time as if he’s “dead behind the eyes”.

He continues this approach all the way up to and through a trial. Presumably he wouldn’t get called to the stand, but if he does, he ain’t talking. Not one single syllable. You can’t ventriloquist a guy’s lips and voice box to make him speak words that he’s unwilling to say.

I can’t imagine it’s a “foolproof plan” for getting out of any crime or misdemeanor, but it sure seems to give him a better chance than running his mouth, trying to make up some bullshit story, or thinking he can outsmart seasoned investigators.

I don’t know that I would have the self-control to “stick to my guns” and never utter a single word from beginning to end, but the scenario just made me curious.

The worst-case is obviously that the jury says that the defendant is essentially surrendering to the charges against him, so they throw the book at him.

But is there a best-case scenario that that plan could ever work out to his advantage in the real world? There would be no story to use against him (since he hasn’t had his voice heard to any cops or detectives at any point), and there would be no physical evidence against him.

The only thing they’d have him on would be that he was the weirdest (perhaps creepiest) damned defendant that that courtroom had ever seen.

2

It all depends on whether

(a) the prosecution thinks there isn’t enough to persuade a jury he’s guilty, or
(b) if they were to decide to prosecute with what little they have, whether or not the defence lawyer is a good enough advocate to persuade the jury that the prosecution’s case doesn’t meet the “beyond reasonable doubt” threshold.

Too many unpredictables for certainty, but it seems either (a) or (b) could well be possible.

3

What I do know is that there are states where you are required to identify yourself. I don’t know if you could do that without talking at all, though maybe presenting an ID would count.

I’m also not sure how they could communicate their desire to have a lawyer without speaking. You only get a court appointed lawyer if you can’t afford one, and you might need to actually say something to let them know you can’t afford one.

Without a lawyer, I believe his chances of winning would go down a lot. He doesn’t speak, so he doesn’t defend himself or cross examine anyone himself. The case would have to fail entirely on the prosecution not being able to show any evidence.

4

Refusing to speak in court could well be contempt, so he could probably be locked up until he did speak.

5

Maybe he could be, but I think the usual course of action in such a case is for the judge to just enter a not guilty plea on their behalf and move on.

6

My understanding is that it is (he and) his own lawer’s decision about whether to put him on the stand. So he really doesn’t have to say a word. I’d like to hear what IRL lawyers think about this. (As for the hypothetical, I say he walks.)

7

IANAL, so here are some non-lawyerly things I kinda-sorta think I know:

(1) Wasn’t there some case that went up to the Supreme Court something like this? The gist of the outcome was: If you wish to invoke your right to silence, you must speak up and say so :smack: That is, you must at a minimum say out loud that you intend to remain silent, then STFU. I imagine the same must also be true if you want to have a court-appointed lawyer. You gotta ask for one.

(2) The rules are different for different circumstances. Are you being stopped on the street (or while driving your car) and being asked questions by cops? Are you being held in a small room with bright lights in your face being [del]interrogated[/del] ahem… interviewed? Are you under oath in a court, or before a grand jury, or a deposition? These are different cases with different kinds of rules.

(3) The case of being [del]interrogated[/del] ahem… interviewed concerns me: We’ve all heard stories of subjects being interviewed for hours on end by a tag team of cops until he’s tired, weary, needs to pee and/or sleep and/or eat and/or have water, being kept awake and subject to other discomforts until he breaks down and talks. According to all the stories, this comes to a screeching halt when the subject asks for a lawyer, but if he just keeps his lips glued, it goes on and on and on. (Anybody: Does this really happen?)

(4) Now, for what I consider the biggie: The theory that it’s up to the prosecutor to prove the case against you beyond a doubt is an idealized legal fiction. According to this fiction, the defendant never has a need or duty to defend at all. He needs only keep his mouth shut and let the prosecutor prosecute — that is, prooooove — the case — in which case, presumably, no defense is possible anyway.

That’s baloney. We’ve all heard those kinds of stories of some (typically black) kid getting sent up for life based on no better “proof” than the testimony of one or two witnesses who think all blacks look alike anyway. The point is, “proofs” can be seriously lame and still convince a jury to convict. Yes, in real life, the defendant really needs to put up some kind of rebuttal that’s better than the prosecutor’s prosecution, or he’s toast. This does not necessarily involve the defendant taking the stand and testifying with his own mouth (if often doesn’t) but it could happen.

(5) There’s a special case of this: There’s some rule, I think, that anyone can assert any alleged “fact” in a court, and if nobody disputes the fact, then the court will take it as undisputed fact. What does this mean? If a witness says he saw you rape your mother, and you take the 5th and refuse to respond, what happens? Well, it could happen that if a witness says that, and you keep your mouth shut and don’t dispute it, then the court takes it as undisputed fact, and so advises the jury, and you get convicted.

But wait, it gets worse. Generally, you cannot selectively take the 5th on just those questions you choose not to answer. You have to start out taking the 5th right from the start and then refuse to answer all questions (beyond basic name-rank-serial-number stuff). You don’t have ahead-of-time knowledge of what questions will be asked.

You’ve all heard those cases (think of Joseph McCarthy hearings) where the interrogator asks a long series of very accusatory questions, and the subject keeps taking the 5th. That can be taken as a series of incriminating statements (in particular, if a witness says them) that then remain undisputed if the subject keeps his mouth shut. That can lead to bad results!

Lawyers, judges, and similar professionals: Which, if any, of the above points has any reality to it? Are our legal proceedings sensible, or straight out of Alice in Wonderland? Can someone who actually is a lawyer refute any or all of this? Remember, if not, then my remarks here will stand undisputed and will be taken as fact by the Judges Of The Straight Dope!

8

There are plenty of cases all the time where the defendant has asserted his right to remain silent right from the beginning. Legally there isn’t any difference between that and the situation in the OP.

All that means is you won’t stop investigators from asking questions. If you say you don’t want to talk they have to stop asking you. If you say nothing they still can’t force you to say anything. However they may be able to testify as to your demeanor during the interview since it was not ended. That may or may not hurt the defendant.

As for a lawyer the judge will most likely appoint a lawyer any way under the circumstances.

It certainly doesn’t happen in my jurisdiction. Multi-hour interviews can rarely happen but if there is a hint of keeping food or water away from them everything gets thrown out. We make sure we ask right on video if they need water. If they are there for a while they get a quarter pounder. If they ask for a bathroom break we take them to the bathroom.

It’s extremely rare for the defendant to take the stand. The defense does not have to give any kind of rebuttal. The defense often does not offer alternative theories. They just have to show there is reasonable doubt in the testimony of the prosecution witnesses. That’s often easier to do than to give an alternate theory.

A defendant doesn’t have to take the 5th. As a defendant he is already covered by the 5th amendment. He doesn’t have to testify and the jury can not make assumptions as to his guilt or innocence because of that. Taking the stand means he is waiving his right to remain silent and is subject up cross examination. In a criminal trial the prosecution can not just assert a fact they have to prove it beyond a reasonable doubt.

Taking the 5th occurs with subpoenaed witnesses not defendants. Also in civil trials defendants can be called to testify.

9

In what jurisdiction did this hypothetical crime occur? There are some in which you have the right to remain silent, but invoking that right can be used against you in court. In the UK, for example, it can be legally argued that a defendant’s refusal to provide exculpatory evidence to the police is an implication of his guilt. So in your scenario, a conviction is more likely.

10

IANAL but if this is considered contempt he need only say, “I decline to answer on the grounds of my rights under the Fifth Amendment.”

11

You know, when Giles Corey tried this in Salem, Massachusetts during the Witchcraft Trials, he was pressed to death

Just sayin’.

12

Doesn’t apply as this case predated “right to remain silent.”
And by remaining silent, although he died, his family kept their properties. If he entered a plead, and was found guilty (which was almost a certainty), not only would have he been killed anyways, his family would have lost all money and properties, basically left to starve.

Although hanging (if done properly) is a quicker death than being pressed to death.

13

The cops David Simon covered in "Homicide’ which was the basis for the TV series thought that any suspect who opened his or her mouth was an idiot. The moment they did the cops could use it to drive a wedge in the story. So they would agree with the scenario. (And than God for the prevalence of idiots on the street.)

Not talking to the lawyer is another matter. Could even a court appointed lawyer resign the case for a non-responsive client? The defendant might wind up with the worst lawyer on the roster, which would not work well for him.

14

No they wouldn’t. If someone refused to give their name or ask for a glass of water they would think they are an idiot. Refusing to be interviewed is a different matter.

15

I’m reminded of a scene from Hill Street Blues.

16

You can’t decline to give your name on Fifth Amendment grounds. Nor can you refuse to enter a plea.

17

Your lawyer can enter a plea for you, you don’t have to open your mouth. And, in the event that a defendant refuses to plea, the annoyed judge will just enter a “not guilty” plea for you. Annoying the judge is a bad idea.

As a defendant, you absolutely do not have to put on a case, and it is very very common for the defense to not put on a case. That doesn’t mean the defense lawyer does nothing, only that they challenge the evidence put forth by the prosecutor, and don’t put forth any evidence of their own.

It is not true that if a witness says something the jury is obligated to take it as fact unless there is some dispute of that fact. A jury is entitled to judge the truthfulness of a witness. And disputing testimony doesn’t have to take place during the defense. The defense attorney will just cross examine the witness when the prosecution puts them on the stand.

As for the prospect of the defendant sitting on the stand, taking the fifth at each and every question the prosecutor puts to them, that can’t happen. The defendant doesn’t have to testify to anything. He can just sit there at the desk with his mouth shut, and in most cases that’s exactly the smart move. The prosecutor can’t ask him questions unless he’s on the stand, and he only has to take the stand if he volunteers to. But if he does take the stand, he can’t refuse to answer questions because he’s waived his right to remain silent. He’s obligated to answer the questions.

In real life, people are arrested who don’t speak English, people are arrested who lack the physical ability to speak. If you don’t speak English, the court will have to find an interpreter for you. If you only speak Spanish good luck with the “No habla Ingles” because they’re ready for that.

As far as your lawyer quitting because you won’t talk to them, probably not. Everyone has the right to a lawyer, and your lawyer can’t quit until you have another lawyer lined up. Public defenders have to deal with uncooperative clients all the time, that’s part of the job.

Generally a judge will only require you to speak at your plea hearing if you’re pleading guilty. Then you’re usually asked, not just to plead guilty, but to explain exactly what you did that you’re pleading guilty to. This is generally done to establish a “no backsies”. You can’t then go to another court and complain that you were tricked into pleading guilty, because that other court can cite your allocution where you admitted in court about how you stabbed that old lady in the face. If you won’t do that, then a court might refuse to accept your guilty plea.

But your thousand yard stare defendant isn’t going to have that problem, because he’s not pleading guilty. If he doesn’t have an attorney to plead not guilty for him, the judge will do it for him.

18

Yes but my interpretation of “speak in court” was not that literal; I assumed that meant giving testimony under oath.

19

ianal but you have to say say you wont talk and want a lawyer or they can continue to question you. For a long time.

20

I sat on a jury in a first-degree murder case. While I don’t know whether the defendant was silent behind the scenes, he never spoke at all in court, and his attorney did not present any defense. We tried to carefully consider all of the evidence (two eyewitnesses, the weapon was found in his mother’s home, etc.) as well as any possible alternative theories of the crime, but in the end we voted to convict. It is challenging to be impartial when you have only heard one side of the case.