Primarily, the issue will be what happens if they do talk for some reason. Whatever Alex says is inadmissible in a subsequent criminal trial. What Bob and Carol say will be admissible (assuming they have been properly Mirandized).
Also, what Bob and Carol don’t say will also be admissible. The prosecutor can say, “look, the police asked where Bob was on the 5th, and he didn’t answer! Don’t you think an innocent guy would have said he was bowling?” Alex’s refusal to answer questions cannot be held against him that way.
And what would happen if Alex (having failed high school civics) says “I’m invoking my 11th amendment rights, and will not answer any more questions”?
What if he just says “I got a right not to talk, and I ain’t talking”?
What differentiates Alex from Bob who just said “I got nothing to say to you”? Is there a certain minimum set of words that Alex has to say in order to preserve his rights?
You are not legally required to answer police questions. It is a crime to deliberately lie to them, and obviously if the police question you and you immediately clam up and refuse to say anything it’s a guarantee that you will now be held as a ‘person of interest’ or more, regardless of any other evidence. Immediately refusing to answer *any *police questions is grounds for ‘reasonable suspicion’.
You only need to actually ‘take the Fifth’ when being questioned under oath by a judge or a DA, usually in front of a jury (grand or trial). In those cases you are obligated to respond either truthfully or by invoking the Fifth Amendment. And if the judge decides that the Fifth Amendment doesn’t apply, say if you were merely asked to state your name or address and you still refused to speak, they can hold you in contempt and keep you in jail until you do.
Well, if it goes to trial, the defense can say “he wasn’t silent because he couldn’t figure out how to deny it, he was silent because he was invoking his rights. You can tell by what he said.”
The British system (thanks, L&O UK) has the proviso “but it may be used against you if you fail to mention anything and then try to bring it up later.” If you wait a week to claim that you were watching TV with grandma that night, then presumably the court can mention that you did not state your alibi until after you had enough time to coach grandma.
So it’s likely that both of those statements would qualify as an invocation. “I got nothing to say to you” is sufficiently ambiguous that I don’t think it would qualify, but this is not my field. Paging Bricker.
This situation is really a TV mainstay. I can’t begin to count how many times on TV shows such as Hawaii 5-0, Elementary, Criminal Minds, CIS, Person of Interest and others I happen to watch that a suspect will say “I’m not sayin’ nothin’ without my lawyer”, and then the police continue to question them or threaten them or beat them up and gain a confession. Or a lawyer will actually show up and tell the cops that they must stop the questioning, and yet the questioning continues and the client ignores his lawyer’s advice. I realize the confession neatly wraps up the show, putting aside any subsequent trial issues, but it still bugs me. I must confess that I have never watched Law & Order, so I don’t know if they handle things better there, or not.
L&O is one of the few shows - after decades of Matlock and such - where the writers seem to have some smattering of legal education. They actually pay attention to the details of what’s admissible in court, fruit of the poisoned tree, requirements for warrants, and other details (when it doesn’t get into the way of the drama).
I now only await the next generation of legal dramas, more realistic, where the court cases don’t happen until the next season after the police drama, since it usually takes a year for anything to get to court.
This all seems a little much. Can you give a cite on the last one? I mean, it seems pretty obvious to me that a bystander saying “I aint’ talking to you” doesn’t reach reasonable suspicion (without any other reason to suspect the bystander).
And of course ‘reasonable suspicion’ doesn’t let them arrest you. Maybe ‘hold’ long enough to frisk you, get your ID, and try and ask you more questions (or annoy you with some BS excuse to make you wait around, like calling for a drug dog or something), but no longer than that, right?
Susan Nelles was charged in the dead babies case at Toronto Children’s Hospital; IIRC the police said a major reason they suspected her, focused on framing her, and that they arrested her was because instead of saying “oh, how horrible” and breaking down crying when asked about the babies being murdered, she said “maybe I should call a lawyer”.
(Tests much later determined that the overdoses of digoxin detected in the dead babies was an artifact of the test process and theer were likely no murders.)
If you have explicitly invoked the right to silence, no. Doyle v. Ohio, 426 U.S. 610 (1976). There is a caveat, though: if you have been arrested, but not Mirandized, your silence is admissible for impeachment purposes* and even as substantive evidence in some circuits. Don’t ask me to explain that one.
*In other words, the prosecutor can cast doubt on your story (if you testify at trial) by pointing out that you didn’t mention that you were framed/out of the country/just investigating screams in the night at the time of your arrest.
I watch an awful lot of those true crime shows on ID and TLC. Quite often they’ll show the interrogation room tapes and once the suspect says they want a lawyer the interview is immediately shut down. When they also interview the cops, they’ll say how disappointed they were when that happened because they no longer have that avenue to maybe get some usable information or even a confession.
Wasn’t there a Youtube video on this when the female attorney was arrested on obstruction in the courthouse hallway when she insisted cops couldn’t question her client?
That’s not, strictly speaking, true. It’s still possible for Alex to self-incriminate after taking the fifth… if such admission is not in response to any government action to try to get him to talk. If Alex takes the fifth and then, without any prompting by the police, says something incriminating, it can be admissable.
So don’t declare that you’re taking the fifth and then immediately confess your crime, that won’t work.
I was asking if you didn’t explicitly invoke your Fifth Amendment rights. You just sat there throughout the police interrogation and didn’t speak. Can the fact that you remained silent be introduced as evidence against you in court?
Cite? I don’t know for sure you’re wrong, but the guide to law I linked earlier disagrees with you on every point.
You can take the fifth any time the government is asking you questions. This includes police interrogations, senate hearings, and even filling in your tax returns.
A person under interrogation can refuse to give any information, including his name.
You might want to keep reading that guide, a few pages later it directly contradicts your claims above. If, for example, you have been granted immunity from prosecution, a judge can hold you in contempt for refusing to answer questions even if you (falsely) claim fifth amendment protection. There are also exceptions if you start testifying about a topic in trial then refuse to clarify.