Police Interrogations

Factual Questions
81

That was my thought when I read the first page. IANAL, but, as I understand:

You can of course say absolutely nothing when arrested. You can stay mute when the police approach you on the street. There is no law requiring you to talk. (Except, when there is reason to believe you might be involved in what might be a crime, you may be required to identify yourself. IIRC otherwise, failing to identify yourself is obstruction.).

And, once you are arrested, if you don’t say “I want a lawyer” the police can keep trying to get you to talk and keep asking questions. Even if you say “I choose not to talk to you any further” they can keep trying.

Once you are under arrest and ask for a lawyer, then the police must funnel all further questions through your lawyer. Even then you (or he/she) can refuse to provide answers. It’s only when you get to the witness box (as a defendant, your choice) you must say “I invoke the fifth”.

There’s the whole other part. You can’t get on the stand, say “I didn’t do it” and plead the fifth beyond that. Once you open up to testifying or answering questions about something, you cannot clam up on the topic half way though.

If you lie to police, and it is intended to misdirect the investigation, that is obstruction. Telling them that you had pizza last week not burgers is not a crime, unless it is relevant to the investigation. Presumably telling them you didn’t sleep with the boss’s wife is not a matter of obstruction unless it’s relevant. With the FBI, YMMV.

The interesting thing about immunity is - in the USA there is state and federal law. So immunity under one does not necessarily shield a defendant from the other jurisdiction. Interestingly, it has no bearing on civil suits; AFAIK once immune, you can’t use the fifth to evade questions in a civil suit, but I assume you can refuse to answer - unlike criminal court, you don’t have to answer anything, but that refusal (or lack of a helpful answer) can be held against you.

So for the case of Epstein in Florida with his first charges, that the feds charged him I understand did not stop the state from also doing so. They just chose not to. IIRC there was some question about double jeopardy.

A reverse tactic, NY State is suing the Trump organization in civil court, and there is concern that the upper management can either answer and their answers could later be used against them if there are criminal charges - or refuse to answer pleading the fifth, and that fact can be held against the company in the civil suit - suggesting higher penalties may apply.

82

Are you sure?

If I am giving testimony and asked what I had for breakfast and answer “eggs” and then they ask if I killed Joe Schmo are you saying I cannot plead the fifth because I answered eggs and now anything is fair game?

83

In a criminal trial, if you are the defendant you can exercise your 5th amendment right by choosing not to testify. But if you do testify, you then have to answer the (non-objectionable) questions asked. You do not get to pick and choose.

If it is a civil trial, there is no right for a defendant to refuse to testify. But they can invoke the 5th amendment to specific questions that are asked of them - a blanket invocation to all questions does not suffice. (And the effect in the civil trial is that the opposing party is entitled to an “adverse inference” based on the refusal to answer)

This is true of witnesses, as well, who might be subpoenaed to testify. They can invoke the 5th, but must do so each time a potentially incriminating question is asked.

84

How did you end up on the stand and what does Joe’s Schmo’s murder have it do with it ? Because if you are on trial for murdering Joe Schmo you will have to answer questions about the murder. If you didn’t intend to waive your Fifth amendment protections, you shouldn’t have decided to testify - you had every right not to testify at all. If you are on trial for something that has nothing to do with Joe Schmo’s murder - for example, you are on trial for stealing my car - you will not have to answer the question as your lawyer will object to the question because it is irrelevant and you won’t have to answer. If you are a witness, you can plead the 5th to each individual question that might incriminate you.

85

This incident has been mischaracterized. The problem wasn’t that the suspect asked for a “lawyer, dawg.” The problem was that he said (not an exact quote) “If you all think I did this, then I want a lawyer, dawg.” Controlling case law says that a request for a lawyer must be unequivocal. Any “I think” or “maybe I should” is NOT a controlling request for an attorney, and that is why that individual’s statement was permitted it court.

To touch on what others have said, if you are not in custody, Miranda is not required. Around here the police make it a point to tell suspects that they are not under arrest and can leave at any time. They have them get up and check that the door is unlocked, restroom down the hall third door on the right, and if you want to step outside and grab a smoke, feel free because you are not at all in custody.

In most cases, if the person would go get in their car, they would find themselves in custody at that point, but this little “not in custody” trick makes their statement Miranda-proof.

86

Yes, as @Moriarty said, when you take the stand at Joe Schmo’s murder trial, you probably have a good idea that you will be asked that question. The law doesn’t permit you to get up there and say what you want but then refuse to answer the difficult questions you don’t want to answer. It’s all or nothing. In for a penny in for a pound, but not halfway.

87

Surely this is up for legal challenge. If someone isn’t in custody but would be by going to their car, then they were in custody, for all practical intents and purposes.

“You’re free to leave, except you aren’t.”

88

I’ve made that argument. I’m about 0 for 8 on it so far. :slight_smile:

89

And perhaps a real lawyer can confirm if this is correct:

If you insist on pleading the fifth for everything then you risk contempt charges if in fact you do not risk incriminating yourself with an honest answer to the question. Not sure what powers the judge has to determine if you are being contemptuous, but…

“Were you walking down Main Street on July 5th this year?”
“I plead the fifth.”
Only allowed if the fact that you were (or were not) is incriminating in some way.

90

So how can someone else determine if you might incriminate yourself by disclosing actions you won’t discuss? The judge doesn’t know why I won’t say whether I was on that street… perhaps I was breaking a parole violation for a different conviction by being there, or I was running drugs or dumping a body that hasn’t been found yet, all unrelated and/or separate from the matter at hand.

Separately, I would know that by admitting I was at the scene of the matter at hand I’m placing myself there, possibly incriminating myself. If I haven’t admitted so prior, can I just claim the fifth for every question that might incriminate me… which would basically be all of them?

91

Without doing a bunch of research, the procedure is that the judge gets a good faith proffer from counsel or the witness just to get an idea of what admitting to walking down Main Street would expose the witness to. If the judge gets the idea that it is part and parcel of the whole crime, then yes, the witness can plead the Fifth.

If it is determines that he was in the area on the day in question but is only remaining silent on the advice of counsel and that he is not admitting to any criminal activity, then that dude better get his testifying shoes on because you cannot claim the Fifth if you are not admitting to a crime.

92

Maybe it is different but pleading the fifth to pretty much every question seems a tradition when giving testimony to congress.

For example (there are many other, this is just a recent one I remember):

93

I reject your cite because of the pejorative “reaffirms his love” statement. Not a neutral point of view.

94

Testimony to Congress is its own category, but the Supreme Court has affirmed that a witness testifying in response to a Congressional subpoena has a Fifth Amendment right to decline to answer questions that may incriminate him/her. Of course, getting the witness to invoke their Fifth Amendment right is often what the Senator/Representative is trying to do, since it makes for a very dramatic and telegenic confrontation.

95

That’s just like you’re free to refuse a search of your car, except by doing so you’re suspicious, and have given them probable cause to do a search without permission.

96

I cannot tell if you are joking.

97

Nope. That’s not how it works.

98

Oh…I dunno. I mean, sure, technically that is not how it is supposed to work.

In reality I can imagine an officer who wants to push it can ask for permission to search and, if denied, tell you they are calling for a dog. You then wait for the dog to show and they are notorious for being able to signal a “hit” if the handler wants them to (police jokingly call it “probable cause on four legs”). Now they have probable cause and search your car.

99

Not if they make you wait and they don’t have reasonable suspicion.

Here’s a decent explanation of it.

100

I think it is trivial for police to manufacture “reasonable suspicion.”

  • “I smelled alcohol/marijuana.”
  • “The driver was slurring their words.” etc.

The driver says it ain’t so but which way will the court go?

This may seem picking at a few bad apples but we know the legal system will diligently work to avoid protections. It happened when the Supreme Court created the “Batson Challenge” when it came to selecting juries. Almost immediately prosecutors worked to avoid it. And there are some egregious rulings from courts letting prosecutors avoid it.

Avoiding legal protections is not an occasional thing…it is the norm.

SEAN : “…Batson violation.” And then the other side, be it the defense or the prosecution, has to provide nonracial reasons for why they eliminated that juror. And for a lot of people, this was a breakthrough. This was like, finally, we figured out how to do this right. There was a system in place to protect everyone. And that system was even extended to civil cases and eventually to women as well.

JEFF ROBINSON : Uh, it was a big deal when the case was decided and the initial elation was quickly tempered with a strong dose of reality…

SEAN : This is Jeff Robinson. He’s the director of the ACLU Center for Justice.

JEFF ROBINSON : … because what Batson prevents is deliberate racial discrimination.

BRYAN STEVENSON : And almost immediately…

JEFF ROBINSON : All over the country…

BRYAN STEVENSON : Prosecutors started training each other…

JEFF ROBINSON : Teaching each other…

BRYAN STEVENSON : On how to get around Batson…

SEAN : That’s Bryan Stevenson. He’s the director of the Equal Justice Initiative.

BRYAN STEVENSON : In Montgomery, Alabama. There were trainings all across the country.

JEFF ROBINSON : And some of these are on videotape.

SOURCE

Also, remember the police don’t even need to know the law to make a search stand-up in court:

But the Supreme Court, by an 8-1 vote, ruled that since the officer’s mistake was reasonable, it did not violate the constitution’s ban on un reasonable searches and seizures. SOURCE