Most of us pretty much understand that if we are arrested we can and should shut up and call a lawyer. But to what degree are you required to answer questions when you are not under arrest, and when you yourself may not even be a suspect, but you believe that an investigation could ultimately reveal misconduct by you? For example, in the Martha Stewart case (without debating what should happen to Martha now), she and her broker were not convicted of insider trading itself, but rather of lying to investigators about their possible insider trading. Lying to federal investigators is a serious crime by itself. But suppose Martha, her broker and their employees had all simply told investigators “I have nothing to say.” Would that be actionable? The feds might bluster and threaten, but can they actually do anything to people who won’t talk to them? Suppose they had gone so far as to say “I’m innocent” or “I didn’t do anything wrong”? Could that be construed as a deliberate lie if the feds are able to prove the underlying charge? Is it safe to answer all questions with something like, “gee, i just don’t remember”? (Q: “How do you spell your first name?” A: “I’d like to help you, but I just don’t remember…”)
Related to the above, can you required that an interview with you be tape-recorded? Without a tape the only record of the conversation is the cop’s notes, and he may not be an object witness.
IANAL, but it would seem that the best option whenever you are dealing with the law is to refuse to comment unless your lawyer is present.
Plead the fifth or “no comment” would seem to work.
While I am a lawyer, I don’t litigate and so my recollection of one’s fifth amendment rights (gosh I hope I’m talking about the right one) is rather vague.
In general you have a right not to incriminate yourself, meaning you can’t be forced to give evidence on yourself and your silence can’t be taken in lieu of a confession. Some other folks can’t be made to talk either, such as your spouse (though there are a lot of exceptions to that type of rule).
But generally speaking, you can never be made to talk in an absolute sense. Torture is outlawed after all. Now your silence might might bring you trouble such as a contempt of court citation and your silence can work against you where a prosecutor/plaintiff has made a case against you, but you still don’t have to talk.
But, from a practical stand point, most people can’t keep their mouths shut about things and dribs and drabs of what they’ve said to folks on a particular topic tend to come out over time. Case in point is the guy who talks to his cell mate but won’t talk to the cops. The cops just get the cell mate a nice plea bargain and bang, you don’t have to talk.
Suffice it to say that if the trouble your silence might cause would be of a smaller magnitude than the trouble caused by your singing, you should clam up.
All you other folks with more current/correct knowledge are invited to chime in if I’m off base here.
CJ
Where you are granted either use immunity or blanket immunity you may be compelled to divulge information. Since there is no longer any possibility that it can incriminate you, you no longer fall under the 5th Amend protection. If after being granted immunity, you still refuse to provide testimony, you may be incarcerated untill such time as either it is clear that you will never reveal the evidence sought (said incarceration cannot be punitive, but must serve to compel the testimony) or until such time as the testimony no longer serves any judicial purpose.
If you a designated a material witness you may be held in custody to assure your appearence at trial. You may also be incarcerated for refusing to provide testimony.
There is no right not to speak, rather there is a right not to provide incriminating evidence from ones own lips. Courts have the power to compell you to speak.