# Do I always have the right to remain silent? **URL:** \ **Category:** Factual Questions\ **Created:** [September 27, 2011, 5:47pm UTC](https://boards.straightdope.com/t/do-i-always-have-the-right-to-remain-silent/597778 "2011-09-27T17:47:55Z")\ **Posts on this page:** 11\ **Page:** 3
**Author:** ![leahcim](https://avatars.discourse-cdn.com/v4/letter/l/b4bc9f/32.png) [@leahcim](https://boards.straightdope.com/u/leahcim)\ **Post date:** [September 29, 2011, 5:01pm UTC](https://boards.straightdope.com/t/do-i-always-have-the-right-to-remain-silent/597778/41 "2011-09-29T17:01:36Z")
> [@jtgain](#): > > Surely that standard can’t be right because again, I could pull the “some acquaintance may be found murdered nearby” as an opportunity to take the 5th. \ The converse of this, though, is that the right not to self-incriminate would not be a very useful right if you had to establish the specifics of how your testimony would incriminate you before you use it. And the court naturally has limited means to investigate why you’re not answering any particular question after the fact. So my understanding is that unless you’re not answering a question where there is no imaginable way that the answer would be self-incriminating (“So Mr. Smith, if that is your real name, just what, pray tell is your favourite colour, and I remind you that you are under oath”) no one can contest your taking the fifth. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 29, 2011, 5:23pm UTC](https://boards.straightdope.com/t/do-i-always-have-the-right-to-remain-silent/597778/42 "2011-09-29T17:23:26Z")
> [@leahcim](#): > > \ > > The converse of this, though, is that the right not to self-incriminate would not be a very useful right if you had to establish the specifics of how your testimony would incriminate you before you use it. And the court naturally has limited means to investigate why you’re not answering any particular question after the fact. > > So my understanding is that unless you’re not answering a question where there is no imaginable way that the answer would be self-incriminating (“So Mr. Smith, if that is your real name, just what, pray tell is your favourite colour, and I remind you that you are under oath”) no one can contest your taking the fifth. No, the Court can inquire as to the basis of your claim, especially as a precursor to a grant of immunity. You cannot simply say that some set of circumstances might arise at some future point which might make your testimony incrimnating; you must specifically identify the areas of criminal liability your testimony will expose. The Court will then decide if the proffered questions will breach those areas. ---
**Author:** ![postpic200](https://avatars.discourse-cdn.com/v4/letter/p/54ee81/32.png) [@postpic200](https://boards.straightdope.com/u/postpic200)\ **Post date:** [September 29, 2011, 5:30pm UTC](https://boards.straightdope.com/t/do-i-always-have-the-right-to-remain-silent/597778/43 "2011-09-29T17:30:06Z")
There was a recent court ruling that basically stated in order to invoke you right to remain silent you have to tell them you want to be silent. You can’t just not say anything. Also you if have been granted immunity your right to silence ends, but I’d get advice from a lawyer to make you’re covered for both state and federal though. “Just suppose #1: I’m an architecture student and I’m taking pictures of the Brooklyn Bridge. If a policeman asks me, “What are you doing?”, can I just ignore him?” Short answer, yes, but odds are you will be detained until he figures out what you’re doing. "Just suppose #2: For whatever reason a policeman asks me to identify myself. Maybe he asks who I am or he asks to see some ID. Can I just turn and walk away? " No you can’t just walk away. In most states now if an officer asked you to ID yourself you must show an ID. ---
**Author:** ![leahcim](https://avatars.discourse-cdn.com/v4/letter/l/b4bc9f/32.png) [@leahcim](https://boards.straightdope.com/u/leahcim)\ **Post date:** [September 29, 2011, 6:30pm UTC](https://boards.straightdope.com/t/do-i-always-have-the-right-to-remain-silent/597778/44 "2011-09-29T18:30:14Z")
> [@Bricker](#): > > No, the Court can inquire as to the basis of your claim, especially as a precursor to a grant of immunity. You cannot simply say that some set of circumstances might arise at some future point which might make your testimony incrimnating; you must specifically identify the areas of criminal liability your testimony will expose. The Court will then decide if the proffered questions will breach those areas. Then I was misinformed, and no longer shall be. ---
**Author:** ![MEBuckner](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mebuckner/32/2896_2.png) [@MEBuckner](https://boards.straightdope.com/u/MEBuckner)\ **Post date:** [September 29, 2011, 6:54pm UTC](https://boards.straightdope.com/t/do-i-always-have-the-right-to-remain-silent/597778/45 "2011-09-29T18:54:28Z")
> [@postpic200](#): > > No you can’t just walk away. In most states now if an officer asked you to ID yourself you must show an ID. Show or tell? The law may require you to identify yourself if asked by a police officer (“My name is John Smith” and perhaps “I live at 123 Elm Street, and was born on January 1, 1975”), but does the law any place in the United States require Mr. Smith to carry around a piece of paper or plastic with his name and picture on it, that he must show to a police officer on request? That is, if Mr. Smith decides to take up jogging early in the morning, does he have to carry his driver’s license with him? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 30, 2011, 12:42am UTC](https://boards.straightdope.com/t/do-i-always-have-the-right-to-remain-silent/597778/46 "2011-09-30T00:42:48Z")
> [@postpic200](#): > > "Just suppose #2: For whatever reason a policeman asks me to identify myself. Maybe he asks who I am or he asks to see some ID. Can I just turn and walk away? " > > No you can’t just walk away. In most states now if an officer asked you to ID yourself you must show an ID. Not true. Many states require you to identify yourself; none require you to have or show ID. Obviously, if you’re driving, that’s not the case, but if you’re walking around, I know of no state law that requires you to show an ID. You may not have to do that, even. Police encounters are of two types. The police may approach you at any time, for any reason, with no indicia of suspicion at all, and ask you any question they please. This is a consensual encounter, and remains so as long as you are free to disregard their inquiry and go about your business. If the police order you to remain, then they have seized you within the meaning of the Fourth Amendment. To justify this, they must be able to point to at least reasonable, articulable suspicion that you have committed a crime. This is a level of suspicion below probable cause but above an inchoate, unpaticularized hunch. Of course, the police are good at blurring that line. So a good approach is to ask, “Am I free to go?” if the answer is yes, then calmly walk away. If you are told to remain, then the lawyer you end up with if you’re charged with anything will be able to force the police to justify your detention with what they knew at that moment. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [September 30, 2011, 1:05am UTC](https://boards.straightdope.com/t/do-i-always-have-the-right-to-remain-silent/597778/47 "2011-09-30T01:05:03Z")
> [@Bricker](#): > > Not true. > > Many states require you to identify yourself; none require you to have or show ID. Obviously, if you’re driving, that’s not the case, but if you’re walking around, I know of no state law that requires you to show an ID. But what about the scenario where you are, in fact, carrying ID on foot and an officer asks to see it as part of his investigation as to why you are staring at the Brooklyn Bridge? I can see a colorable argument for an Obstruction charge for refusing to hand it over or lying about not having one with you. I suppose you could refuse to answer the question of whether you are carrying ID, but on what 5th amendment grounds (assuming that your true identity doesn’t incriminate you in some way)? ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [January 7, 2012, 6:13pm UTC](https://boards.straightdope.com/t/do-i-always-have-the-right-to-remain-silent/597778/48 "2012-01-07T18:13:40Z")
> [@bizerta](#): > > Whenever someone is arrested on TV, they always get read their Miranda warning. However, do I have similar rights before I’m arrested. > > Just suppose #1: I’m an architecture student and I’m taking pictures of the Brooklyn Bridge. If a policeman asks me, “What are you doing?”, can I just ignore him? The question is one of NON authority at that point. If you ignore him and he or she persists, it is more likely then to become a seizure under the 4th AM. Then the Constitution mandates certain requirements of the officer. Initially, yes, you can ignore him. > [@](#): > > Just suppose #2: For whatever reason a policeman asks me to identify myself. Maybe he asks who I am or he asks to see some ID. Can I just turn and walk away? Someone noted the Hiibel case, this applies when you are under investigation, NOT if it concerns a curiousity on the part of the officer. It is up to the person to ask such as “Why do you ask for it, am I under investigation”? If the answer is no, you can freely walk away, but a crooked cop can make up anything, remember the Brett Darrow case out of St. George, MO. He was recording the whole bit when the officer threatened to arrest him for made up charges. The ACLU sued on his behalf. I expect it was QUICKLY settled. [http://www.aclu-em.org/downloads/ComplaintFileStamped.pdf](http://www.aclu-em.org/downloads/ComplaintFileStamped.pdf) ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [January 7, 2012, 6:19pm UTC](https://boards.straightdope.com/t/do-i-always-have-the-right-to-remain-silent/597778/49 "2012-01-07T18:19:28Z")
> [@Crafter\_Man](#): > > IANAL, but I’m pretty sure you can be charged with obstructing justice under certain circumstances for not speaking. > > Say you witness a guy running down the street carrying a purse, and you see him duck into an alley. A few seconds later you see a cop running down the same street. The cop stops and asks you, “Did you see a guy running by here and carrying a purse? If so, which way did he go?” I believe in a situation like this, you are required by law to tell the cop what you saw. The 1st AM that guarantees the right to speak, also guarantees the right NOT to speak. So I respectfully disagree with your statement. This of course has no connection with a 5th am Right when you are being implicated, just from your facts. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [January 7, 2012, 6:24pm UTC](https://boards.straightdope.com/t/do-i-always-have-the-right-to-remain-silent/597778/50 "2012-01-07T18:24:46Z")
> [@md2000](#): > > Ignoring the police and walking away (trying to get away?) when asked a polite question may be construed as acting suspiciously, which may give them ground to detain you. Walking away, “in and of itself”, NO, seizing the person then is not constitutional. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [January 7, 2012, 6:29pm UTC](https://boards.straightdope.com/t/do-i-always-have-the-right-to-remain-silent/597778/51 "2012-01-07T18:29:16Z")
> [@Jimmy\_Chitwood](#): > > There’s no way to prove that you were just walking away, rather than hurrying away, looking nervous and possibly concealing your face or something you had underneath your shirt, or whatever, so it may be construed that way, but for what it’s worth, just walking away isn’t enough for reasonable suspicion. > > There’s a distinction between “headlong flight” - suspicious - and refusing/declining to cooperate - not suspicious. So technically, at least, the police aren’t allowed to construe walking away as giving rise to a reasonable suspicion, in a case where you simply see them coming and leave the area without any additional reason for them to suspect you. “Sudden flight” may give rise to a Terry Stop, as we see in Wardlow, and similar to your facts, I agree. > **[ILLINOIS V. WARDLOW](https://www.law.cornell.edu/supct/html/98-1036.ZS.html)** [Previous page](https://boards.straightdope.com/t/do-i-always-have-the-right-to-remain-silent/597778.md?page=2)