My friend comes to me out of the blue consumed by guilt, confesses to a crime, and goes away. We both live in Wisconsin. We have no relationship that could be construed to grant some level of privileged communications – I’m not his lawyer or shrink or priest, just a friend.
Do my legal obligaions, if any, change in any way related to the nature or severity of the crime? Does it matter if the crime is petty theft, or murder?
Do I have any legal obligation to report the confession to some law enforcement official, or any other flavor of government official?
If I’m questioned by a cop, can I simply refuse to answer any questions? I understand I could be hauled before a judge or grand jury (or some type of legal body) and ordered to talk on penalty of contempt. But could my initial refusal to answer the cop’s questions in itself be considered a crime?
I presume that if the prosection was aware of this confession, they would have no legal difficulty cimpelling my testimony at a trial. Is this correct?
If the authorities are smart enough to ask me the right questions, would I have any legal options to try to protect my friend? I’m not sure whether I would want to – but I’m just saying…
IANAL, but it seems pretty clear that it is always a mistake to deliberately lie to anyone connected with law enforcement about anything. Prime example: Martha Stewart. But you usually don’t have to answer questions, and if you don’t want to piss the cops off you can often get away with saying “I don’t know” or “I don’t remember,” especially if you yourself are not suspected of anything and the cops are just asking for information. “Gee, officer, I wish I could help you, but I had a lot on my mind that night and I just don’t remember what he said.” Even that might get tricky sometimes, but pleading ignorance can’t be as bad as lying. As to the rest, I have no idea (well, some ideas but not certainty) about the point at which you have to report a crime or what happens if you don’t.
Possibly helpful: the ACLU “bust card,” with advice about how to behave during encounters with police:
Absolutely NOBODY is going to give you reliable info regarding a hypothetical question, especially one involving a criminal issue. Even real, live criminal attorneys will not touch this, except in the broadest sense, and even then there will be so many disclaimers you will not have any sense of the possible consequences of such a vague hypotheical question.
If this is idle chat, this is the place to ask - dorm BS is the norm in such places.
If there is a real issue, you know the basic questions, and seem to have a general sense of the implications - get thee to a criminal lawyer, competant and licensed to practice in your jurisdiction - NOW.
No. Crimes are all the same, in the face of the law. Penalties may differ.
I don’t think so. There’s no law stating that “regular” people have to report crimes, as far as I know. Therapists, social workers, doctors have to report evidence of crimes, while everything else remains confidential.
You can always refuse to answer questions when questioned by police. That’s one of your Miranda rights, the “right to remain silent.” You can ask for a lawyer to represent you etc. In court, you must answer questions directed to you - the judge can order you to do so, and refusing to do so will wind you up in contempt of court. Of course, you can invoke your 5th Amendment rights - if the answer would incriminate you, you can invoke the 5th and not answer. This wouldn’t apply to your case, unless you were involved with whatever your friend was doing.
I’m assuming you’re talking about some confession you made to the cop. Any confession made to a cop would definitely be given to the prosecution, since they’re kind of on the same side. And yeah, you better believe that would be in the trial. You’re under oath in the trial, so if you tried to flip your testimony during the trial, they would just trot out the confession and get you for lying under oath.
Comes back to right to remain silent. You have no obligation to talk to the police, but lying to the police is obstruction of justice. If you feel this strongly, say nothing. Just understand that the police will interpret this (correctly) as showing that you have something to hide, and your ass will be theirs, eventually.
But seriously, find a friend who knows a friend who knows this lawyer that is cool about talking hypotheticals for an hour for a small price. An actual lawyer will know more than I.
With all due respect to the TOWER DWELLER, his or her post is not 100% correct.
BOYO JIM asks:
TOWER DWELLER says “Crimes are all the same, in the face of the law. Penalties may differ.” This is not correct. A duty to report may be premised on the type of crime allegedly committed. The obvious example is child abuse; a person not having any duty to report a crime against an adult might have the affirmative duty to report an abusive crime against a child. This is generally true of counselors and therapists, who are obliged to report child abuse.
BOYO JIM asks:
Maybe. If you live in a “duty to report” state (such as, say, Colorado) there may be a law placing upon all citizens the duty to report any crime they know to have been committed. I don’t know much about how such a law is implemented (I don’t live in a “duty to report” state myself), so I don’t know what the penalty is for failing to report.
TOWER DWELLER says you can always refuse to answer questions from the police. Again, this is not correct. He/she cites to Miranda, but Miranda only applies to persons placed under arrest. If you are, say, a witness to a crime, you do not have any Miranda right to refuse to answer questions. Nor do you have the right to an attorney, because you aren’t under arrest. Can a refusal to cooperate be considered a crime? Yes. Specifically, it may be an example of obstruction of justice. If your actions can be construed as some overt act of assistance to the criminal – lying to the police, say, or refusing to talk under circumstances where the criminal is escaping – then you may be guilty of rendering criminal assistance as well. But it is not accurate to say that in every case you must do some affirmative act in order to be obstructing justice; you can, in fact, obstruct by silence alone. Again, this may vary from jurisdiction to jurisdiction – I frankly don’t know – but to state that silent never equals obstruction, anywhere, is wrong.
In short, the constitutional right to remain silent is grounded in the Fifth Amendment right to avoid incriminating yourself (hence the term “to plead the Fifth”). If your statement does not incriminate you, then you have no right to remain silent. For that matter, even if you are the criminal and your statement is self-incriminating, the government may still compel you to talk – they just can’t use your statements (or the results thereof) against you afterward. So any talk of Miranda is misplaced. In most jurisdictions, regular citizens do not have an affirmative duty to report all crimes, although soem professions do – health-care workers, lawyers – and others may, depending on the crime.
I assume this is a hypothetical question. Only a fool takes legal advice from a message board.
PAUL, to the extent you are talking about American law, it is always important to recognize that in virtually every jurisdiction, the common law has been modified or preempted by statutes. The duty to report is not in every jurisdiction limited to a class of mandatory reporters, though perhaps you are answering based upon your knowledge of Wisconsin law. In any event, the lack of an affirmative duty to report is not inconsistent with being required to disclose when asked.
“Common law” and “in general” are meaningless - there are various jurisdictions, and each one may have made rules contrary to the law elsewhere.
If this is a real situation, don’t mess around with a message board - get a real lawyer. NOW - BEFORE the police arrive - if you screw up on initial contact, this had better be a very petty offense - otherwise you can expect to come under scruntiny yourself. It’s a couple of hundred to know what to say or not say, and many thousands after you get the Summons and/or Indictment,
As to sins of omission, I believe the old term was “accessory after the fact” - and the rules as to when you cross the line between justifiable (and legal) silence, and when you assist the criminal by not divulging relevant information/testimony will vary within jurisdictions - THIS IS NOT A “ONE SIZE FITS ALL” situation - the rules are incredibly convoluted, and the rules of evidence alone fill many, may books (or gigabytes, depending on your mindset).
DO IT RIGHT THE FIRST TIME! The consequences of screwing up are well worth the price of competant counsel.
In the state of New Jersey, all citizens are mandatory reporters in regard to active cases of child endangerment and abuse (and not just doctors or teachers, e.g.). It is criminally illegal in NJ for any adult not to report witnessed or suspected cases of child abuse. Lest one is afraid that the people you report to the police or DYFS (DIE-fus, Division of Youth and Family Services) will come back to sue you, the law protects all good faith reporters from suit, even if the people you reported were exonerated.
And so, this shows how a state law trumps common law or ‘in general,’ as has been stated above. You need to check with a lawyer from your own state to know what you are or are not legally obligated to do.
I apologize for being unclear. This was a theoretical exercise. I have no such criminal friend.
It was inspired by neuroman’s questions in the thread What do you say to someone facing prison? Contrary to several others,my advice was that he discourage his friend from talking to him about an alleged crime because he might end up having to testify about it.
I have been meaning to post a link to this thread in that one, but I spaced it out. I will do so now.
As I understand the hypothetical, the OP has no direct knowledge or evidence of the crime. They only have hearsay which would be presumptively inadmissable at trial. True, there are exceptions to the hearsay rule, but often nobody -not the police, defense lawyer or competent counsel, DA- nobody but the judge at the trial, if there is one, can state with absolute certainty that a certain exception will or will not apply. That is intended to be a finding for a judge to make, albeit within law and precedent.
So, to what extent can a citizen be obligated to provide information which would be presumptively inadmissable anyway? Are there any general limitations on the protection (if any) afforded by a good faith assumption, by a third party who hears hearsay, that their observations are material enough to require/mandate disclosure? And, of course, as a person uninvolved in the crime itself, the OP may not have the same rights to defer the interview until legal counsel is available, may reasonably not foresee the need for counsel, and almost certainly wouldn’t know, or be expected to know, where the line was.
A comprehensive answer is probably impossible, but I there may be interesting specific situations to discuss. (e.g. foreseeable imminent harm to others)
Well, it’s true that there are some hgihly technical exceptions to the hearsay rule.
But the OP describes an extremely common and well-known exception: an admission against penal interest. Within the bounds of rigor of a hypothetical, I’d be confident in saying that hearsay if this type is going to be admissible.
I’m going to add one final point – the initial question about whether he’s under an obligation to volunteer information about a crime of which he has knowledge, as opposed to responding to questions.
It’s my understanding – and this is subject to all manner of varying jurisdiction standards and a plethora of precedent – that in general he’s not legally obliged to come forward for a misdemeanor (or petty offense, where that’s a separate category) of which he has become aware – but that in at least some jurisdictions, failure to report a felony not known to law enforcement, of the commission of which he has become aware, constitutes a crime in and of itself – “compromising a felony.” Someone with much more knowledge of the criminal law in various jurisdictions should speak to that issue, though – that’s a bit of “layman’s law” I picked up as regards New York (which does have a rule stating pretty much that).
Thank you Bricker - I had wondered about the hearsay application of a “statement against interest” by/to a third party. I knew that such an admission by the defendant was admissable, if made to an officer of the law or officer of the court (except defense council, of course), but did not know of its applicability to statements to a third party.
To go for another hypothetical: What would happen if the defense council WAS to voluntarily divulge privileged information? Would it be admissible, or would the only serious result be possible action by the Bar?