The Right to Remain Silent?


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GuyWithQuestions
June 10, 2007, 11:41 PM
I was just thinking about this the other day since I'm a believer in practicing your rights. You always hear that if you're the suspect in a firearm's self-defense case, talk to an attorney before talking to the police because under all of that emotion, you may say something that you didn't mean and it could get misconstrued. But what about if you're a witness (for example a self-defense case) and the police try to ask you some questions for whatever reason? I know that if you're the suspect you can't be forced to testify against yourself while if you're a witness a testimony can be subpoenaed out of you. If you're a witness and you're afraid that you'll say something stupid that will be used to convict an innocent person because you're afraid you won't describe what you saw adequately, can you legally say that you won't speak without a court order? Could you get in trouble for saying that? Would they say that you are guilty of the obstruction of justice, even though you didn't get in the way but refused to talk without a judge's orders? Can they use the fact that that you requested a subpoena as evidence against your testimony in a court of law? I'm wondering if a witness's rights are similar or different to when they say if you're charged to talk to a lawyer before the police?

I know that there's probably no reason why you wouldn't want to talk to the police right away in almost all situations if you're a witness, but I'm just wondering what your rights are if the police come up to you to ask you some questions.

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zahc
June 11, 2007, 01:31 AM
If I witnessed someone comitting one of the scads of victimless crimes we now have, and I was called to witness against him, you can bet that I would invoke the 5th.

If the tried to make me bear witness, I would just say that I saw nothing but a bunch of purple elephants dancing in accordance with the prophecy of the great Romulox.

RNB65
June 11, 2007, 01:44 AM
Cooperating with the police is purely voluntary. If a policeman asks you questions, you do not have to answer them if you choose not to.

The court can compel you to testify if the judge feels your testimony is crucial. He will issue a subpoena which orders you to show up in court to testify. If you fail to show up for court, you will be jailed for contempt.

You can try to avoid testifying by invoking your 5th Amendment protection against self-incrimination. But since you're not the one on trial, the judge will issue an order granting you immunity in the case which negates your 5th Amendment right. Then you will have to either testify or go to jail for contempt of court.

The best way to avoid testifying is to go into hiding until after the trial. You can't be held in contempt if the Marshals are unable to serve the subpoena because they can't locate you. You can only be held in contempt if the subpoena is served and you fail to obey it.

Be aware that judges do NOT like to be ignored. If they find you to be in contempt, the punishment can be quite severe.

Orthonym
June 11, 2007, 01:45 AM
Hmm. I know somebody who knows somebody who killed somebody. The killer (not saying it was murder malice aforethought, neither did the State) spoke to the guy I know, shortly after doing the deed.

The guy I know was happy to talk to the defense team as well as prosecutors/cops, and did so. He knew both the killer and the killee.

He told them the truth, THE WHOLE TRUTH, and nothing but the truth. He was not called as a witness by either side at the trial.


I mean, you swear to do it, but I betcha no lawyer wants the whole truth to come out in court.

GuyWithQuestions
June 11, 2007, 05:01 PM
So my question is if you're a witness, could they use that against you in court or get you in legal trouble if you say, "I'm not saying anything without a court ordered subpoena"? On other threads, they say if you're one of the one's who may possibly go to trial and you ask to speak with a lawyer beforehand, they can't legally get you in trouble for asking for an attorney first or argue in court that you didn't speak up right away. So, if you're a bystander witness (not a suspect) who wants to be silent until being given a court order, does it work the same way? Could they say that you didn't speak up right away or say that you were obstructing justice?

Just as an example (which I wouldn't do), let's say two guys are in a conflict involving firearms or knives. The police come and one of the guys claims that he was using self-defense and that you're a bystander witness who happened to be sitting down at a park bench close by right when it happened. So the police approach you to ask what happened and possibly gather evidence before it's gone and you say, "I'm not saying anything without a court ordered subpoena." Then in court you say that you didnít see anything at all, all you heard was some gun shots since you were reading a book at the park bench and hadnít a clue what was going on. The judge then says that heís giving you a court order to speak and you respond by saying that you never claimed to be a witness ever or tried to represent yourself as a witness and only said you needed a subpoena to speak when the police asked you if you saw what happened. Not that I would do that and the police would think you're a pain in the rear end; Iím just using this as an example for my question to find out what your rights are as a witness. Could you get in legal trouble for saying you need a court subpoena and in court could they say you didn't speak up right away?

Titan6
June 11, 2007, 05:12 PM
Guy - You are being a pain in the rear end. Why would you do such a thing? The system of government that we have involves people working together. If you don't want to then why would you hold up the process?

People don't want to make a statement all the time because they don't want to get involved. While I think this is poor form and poor citizenship it is not a crime. All you have to do is say "I don't want to make a statement at this time" and leave it at that. Keep in mind that if the investigator thinks you saw something he will likely pester you at least once and maybe more than that if he can't find any witnesses.

Also you may be called pestered by the defense as well. But almost never would you be called to court to testify if no one knew what you were going to say either by the defense or the prosecution. The last thing any attorney will want on the stand is someone who they have no idea what they are going to say.

This is the reason why people get away with a crime in front of a half a dozen witnesses; no one wants to get involved. Simply stating that you saw nothing would be a big help.

LoneStranger
June 11, 2007, 05:24 PM
When approached by Authorities and questioned by them I can't help but think of two recent names. Martha Stewart and "Scooter" Libby.

Neither one was convicted of being involved in a "Criminal" activity but rather for not telling the whole truth to investigators at all times. They both claimed that if there was a discrepancy in regards to various versions of their testimony it should be accounted for by temporary memory problems.

I am not positive but I would think that if I was approached by Authorities I would have to refuse to talk to them except through my attorney, personally paid or provided by the State. This way I would not risk temporary mental confusion putting me at risk for prosecution and/or jail time.

Remember, the Authorities are not your friend but they may be the friend of someone who benefits from you being thrown to the wolves.

alan
June 11, 2007, 05:28 PM
Wasn't it Abe Lincoln who opined that "most people sound a lot more intelligent with their mouths shut than they do with their mouths open"?

RNB65
June 11, 2007, 05:47 PM
Could they say that you didn't speak up right away or say that you were obstructing justice?

It only becomes obstruction if you lie to the investigators. Saying nothing is perfectly legal until a court orders you to testify.

Art Eatman
June 11, 2007, 06:30 PM
AS near as I can tell, if you're a witness to some crime, and are not involved in that crime as a participant, your only jeopardy might be that the perp will act against you in an effort to keep you from testifying.

If you're not worried about retribution, what's the problem with testifying?

And if what you saw contradicts the prosecutor's conclusions, why would you not help free an innocent person?

Art

MartinBrody
June 11, 2007, 06:30 PM
I don't think the 5th applies here because it involves self incrimination, not incriminating others.

If anything the term "material witness", may be more applicable here, although it may only come into play when there is a warrant, not just an officer on the street investigating something that just occurred.

Personally under most circumstances I would like to think I would fully cooperate if I witnessed a crime, I despise the "Stop Snitchin'" culture we see here in Philly all the time. It makes me sick to read about a street full of witnesses to a shooting and none will come forward, it is not helping our RKBA.

DWARREN123
June 11, 2007, 06:48 PM
Do what you feel is the right thing.

Zundfolge
June 11, 2007, 06:56 PM
If I witnessed someone comitting one of the scads of victimless crimes we now have, and I was called to witness against him, you can bet that I would invoke the 5th.
The 5th Amendment invocation is against self incrimination. Other than your spouse you have no right not to incriminate others. If you are subpoenaed and put under oath to tell the truth, the whole truth and nothing but the truth and you don't do so, you're guilty of purgery.

HankB
June 11, 2007, 07:01 PM
If threatened with obstruction for failing to talk to the cops immediately . . . well, IANAL, but it seems to me that threatened prosecution would absolutely justify my demand for a lawyer to represent me before I said anything.

And as previously stated, they have criminalized faulty memory and inconsistent testimony, and made it a crime to lie to an LEO (though he's free to lie to you . . . )

Still, if I saw a real crime, with no connection other than as a witness, I'd be inclined to tell the cops what I saw . . . I did that once when I saw a hit & run (I got the guy's license plate) but never heard anything about how or if things were resolved, and was never contacted for a follow-up.

HonorsDaddy
June 11, 2007, 07:09 PM
You asked,

If you're not worried about retribution, what's the problem with testifying?

What if, in your personal opinion, the "crime" committed shouldn't be a crime at all?

Your testimony could possibly send what you believe to be an innocent man to jail.

brickeyee
June 11, 2007, 07:20 PM
"What if, in your personal opinion, the "crime" committed shouldn't be a crime at all?

Your testimony could possibly send what you believe to be an innocent man to jail."

You are free to take his place if the judge charges you with contempt.

MechAg94
June 11, 2007, 07:43 PM
If you really want to be a crusader for what you think is right, you might end up paying the price. Personally, I think you are carrying this a bit too far.

You are required to tell the whole truth and nothing but the truth. How you tell it and what words you choose is your business. You don't have to let a prosecutor lead you around by the nose.

TheFederalistWeasel
June 11, 2007, 08:00 PM
Why would you invoke the 5th? It applied to self incrimination and you are not testifying against yourself are you?

I'm sure the Judge would get a giggle out of this one...

GuyWithQuestions
June 11, 2007, 08:47 PM
Titan6,

Guy - You are being a pain in the rear end. Why would you do such a thing? The system of government that we have involves people working together. If you don't want to then why would you hold up the process?

I said that I never would do that but am just using that as an example to find out what your rights as a bystander witness are. I know that some places that have privacy records for their customers sign a contract saying that they'll never give out the records to anyone unless a court ordered subpoena is given. I was wondering if a bystander witness would have the same rights. I used that example because I didn't quite think that my original question was answered detailed enough in the first few posts, so I added a what if to it.

MechAg94,
You are required to tell the whole truth and nothing but the truth. How you tell it and what words you choose is your business. You don't have to let a prosecutor lead you around by the nose.
If I'm called to court, I would. I was just curious what the rights of a witness are before court so that you don't accidentally say what you don't mean because it was an emotional event for you to watch as a bystander and then the attorneys try to say that you're contradicting yourself later.

TheFederalistWeasel,

Why would you invoke the 5th? It applied to self incrimination and you are not testifying against yourself are you?

I'm sure the Judge would get a giggle out of this one...
That's why I was asking what the rights of a bystander witness are, since he/she isn't being asked to testify against himself, either when the cops show up or in court. In court he has to talk if there's a court order, but when the cops first show up does he have to speak?

mp510
June 11, 2007, 09:08 PM
I know that if you are subpeonaed to testify before a grand jury in CT, you are not allowed to take the 5th- at all. The catch is, they can't use your testimony against you.

I don't know what would happen if you were a wittness and didn't talk to Johnny Law, but I don't see any reason not too.

cassandrasdaddy
June 11, 2007, 09:21 PM
i would use " i forget" not a crime actionable and no way you can contradict yourself

i trained guys in my union to use that

LawBot5000
June 11, 2007, 09:32 PM
There are tactful and untactful ways of exercising your rights around police officers. Be as polite as possible and as firm as necessary. It is cheaper to not get arrested in the first place than to invite an arrest and win on appeal.

If you have a concern about something bad happening due to cooperation with the cops, just tell explain that to them as specifically as you feel comfortable and that should be that. As long as the police don't feel that you're trying to protect the criminal instead of protecting yourself, they probably aren't going to give you grief.

ServiceSoon
June 11, 2007, 09:57 PM
If you're not worried about retribution, what's the problem with testifying?

Jurors are viewed by the public. That is why I refused to participate in our legal system when I was summoned for jury duty. I know it is a long shot, but I don't want to risk the chance of a family member or gang member of the accused, seeking revenge on me for giving the accused a guilty verdict. I'm sure there is a perfectly good reason the courts publicly announced my full legal name as a juror. :rolleyes:

yhtomit
June 11, 2007, 10:34 PM
If you really want to be a crusader for what you think is right, you might end up paying the price. Personally, I think you are carrying this a bit too far.
__________________
http://www.tamu.edu/ccbn/dewitt/images/cometakelg.jpg

That message and that sig seem in tension.

The problem with "cooperation" when it comes to things you think ought not be crimes (and I think it's fair to say there are things of that sort on which reasonable people can disagree -- things like murder-for-profit aren't on that list, but peaceable marijuana smoking would be, say) is that as someone said a few comments above this one, you might help send someone to jail who has harmed no one else through his action.

If you knew that an acquaintance of yours somehow bought more than one gun in a state where that's a violation of the law, would you feel obligated to recite that knowledge to law enforcement? (Whether you'd face contempt of court or similar charges is a separate issue, let's say.)

timothy

buck00
June 11, 2007, 10:54 PM
Would they say that you are guilty of the obstruction of justice?

If you are at the scene of a crime, and someone says "yeah that guy saw the whole thing...." and the cops question you, and you refuse to say anything, there is a chance a cop could threaten you with "obstruction of justice." Legit threat? Nope- it is a bluff. He can't force you to talk on the spot. People refuse to give statements all the type with no penalty.

However, cops can and will say all types of made up stuff to intimidate people into talking. They are allowed to under the concept of "reasonable deception." So yes, a cop could say "if you don't tell me what you saw, you're going to prison!" and he is pretty much within his rights. Whether or not you fall for it is up to you. This isn't a cop bashing thread, just a reminder of the tools they have at their disposal. And yes, such bluffs often help them bust real bad guys so no complaints here.


Under subpoena by a grand jury, you face jail time if you don't talk.

Remember this bed time story? :rolleyes:

http://www.washingtonpost.com/ac2/wp-dyn/A46823-2004May21

JerryM
June 12, 2007, 12:04 AM
It would seem to me that it would be an obstruction of justice, if one withheld information about a crime.

Jerry

JohnKSa
June 12, 2007, 12:29 AM
The right to remain silent is really the right to not self-incriminate. It doesn't give you carte blanche to keep anything you want from the courts just because you don't feel like talking.

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