Let’s say you drive your buddy to the liquor store to steal a bottle. You’re in a convertible with the radio off.
He runs out with a bottle, but spots a cop nearby and ducks into an alley.
The shopkeeper runs out and hails the cop, pointing at you as someone who must have been a witness. The says “Which way did he go?”
Can you just say you aren’t going to answer, without citing your rights?
When you get hauled in for impeding a police investigation can you tell the judge you refuse to answer, without citing your rights?
Or is the right there whether you quote it or not?
The only time you need to formally claim the Fifth Amendment is during testimony. In the situation you are describing, you could certainly legally remain silent, although this would probably tickle the suspicions of the cop much more than saying, “I’m sorry, I really wasn’t paying attention,” or “I don’t want to get involved,” would.
Obviously this is intended as general commentary on a general hypothetical situation, the specifics of which may vary dramatically from state to state. This is not intended as legal advice. I am not your lawyer, and you should consult a lawyer licensed to practice in your jurisdiction for actual legal advice.
During testimony at a trial, do you need to say the words ‘fifth amendment’? The way I’m used to coming across it, (admittedly from the media, but,) is simply “I refuse to answer, on the grounds that the answer would incriminate me.”
I am not a lawyer, but I don’t think that remaining silent in that situation is invoking your fifth amendment right to avoid self-incrimination. You didn’t steal the bottle, as far as I can tell from your description. Your friend did.
Fifth amendment rights are invoked at trial, not on the street. You generally have the right to remain silent in the face of police questioning. I would note, however, that many states require you to identify yourself to the police during the course of a legal interaction, but you could simply refuse to answer questions with regards to any alleged crime.
If he drove his friend to the store knowing that his friend planned to steal the bottle, then he is most certainly an accessory to the crime. So self-incrimination would be an issue.
I’m sorry that I don’t have a cite for this, but I seem to recall discussion of this with the Hollywood blacklist. As best as I can recall: One defendant made the standard statement in response to the first question (invoking the Fifth Amendment) and stated that it would be applicable for all other questions that required self-incrimination. Because he did not specifically answer each question with this statement, he was found in contempt. Sorry to be so vague about this; perhaps others more familiar can weigh in.
The right to refuse to answer the questions of a police officer during an investigation is an extension of the Fifth Amendment right (through the Fourteenth Amendment). If you were to cite support for your assertion of the right in a legal brief, you would refer to the Fifth Amendment.
Prearrest (or pre-custodial) invocation of the Fifth can be risky. For one thing, it can be ineffective. For another, while just about every decision I’ve seen says it can’t be used as substantive evidence of guilt, some jurisdictions permit its use for impeachment, and some have held introduction of pre-arrest invocations to be harmless error, at least under some circumstances. So shouting “I don’t have to tell you anything,” or “I invoke the Fifth Amendment” isn’t necessarily the smart thing to do.
“Am I free to go?” on the other hand starts the *Miranda * clock. If the officer says, “yes,” you walk, if he says, “no” he’d better read you your rights or stop asking questions.
Note that this is a much better question than “Am I under arrest”, which will probably get the response “You wanna be”? 
Plus it avoids the misleading response: “No. We just want to ask you some questions.”
I’m going to assume that you were in on the conspiracy to steal the liquor bottle. If you weren’t, then please correct me, because it’s a whole new set of circumstances.
In the first question when the cop asks “Which way did he go?” you cannot refuse under fifth amendment grounds to answer the question. Telling the officer that he went down a certain alley does not incriminate you in any way. Sure, you would like your buddy to get away with it, but that’s not a constitutionally protected right. In fact, YOU getting away with a crime isn’t a protected right, you just don’t have to incriminate yourself. Telling a cop which way a co-conspiritor ran does not incriminate YOU. You must answer truthfully or be arrested for (fill in the blank)
Then the second question. When you get hauled in for impeding a police investigation and come before the judge, listen to your lawyer, even if it’s a public defender for further guidance. You can remain silent at this point (whether or not it’s the best thing should be up to your attorney) as what you are remaining silent about is a different set of circumstances…
Please feel free to ask away.
I don’t want to hijack the thread, but could someone quickly explain how this works?
I understand a police officer is probably legally allowed to ask some cursory questions, or in the case of a traffic stop, get your license and registration. But at what point is it OK for me to ask if I’m free to go? Is there a specific amount of questioning they’re allowed? Obviously I can’t ask the second they walk up to the door?
And if he does read you your rights, then** STFU** except “I want to speak to my/an attorney.”
Which would seem to be the right thing to say instead of “I Take the 5th”.
*Miranda * only applies to custodial interrogations. The test for whether you are in custody is essentially whether you are free to go or not. If they approach you and start asking questions, the situation is ambiguous, but a court is likely to assume you weren’t in custody yet, so they can ask you whatever you want, and it can be used against you later if you are charged with a crime.
I’ve read that it’s as soon as you get your documents back. This was in an article a few years back titled “Driving While Black” in, I believe, Esquire.
Well nothing but common sense is preventing you from *asking *, but given that he just pulled you over the answer seems pretty clear. 
Seriously, if the cop gives you your documents back, that’s surely a good time to ask, assuming you haven’t already been told. Also, any time you are being asked questions, especially beyond the basic vital statistics type, that’s a good time to ask. If he gives you your documents back and seems to have resolved the traffic stop (issued a ticket or a warning) and then gets chatty or says you’ve got to wait around for some reason, that’s a great time to ask.
…and if as you’re walking away he says “Just one more thing…”, run like hell!
Just in case anyone out there doesn’t read this as a joke, in the above circumstances, it is not good advice to flee. Simply say you’re busy and need to go if you are free to do so.
Sorry for the wet blanket response.
Here’s the reference for the puzzled: