I'm not understanding what he's being asked. If he's being asked, "Who did you rob this bank with?" then surely he can decline to answer under the Fifth Amendment? If he's being asked, "Who's this guy standing next to you in this picture?" then that isn't really testifying against anyone. So how does he have information that counts as "testifying against" his criminal colleagues, but isn't self-incriminating?
What if his lawyer said that at his defense, that he cannot give them up, because then they could incriminate him? Does that count as a fifth amendment defense, since in a way it's self incrimination, because you are incriminating someone, who if arrested, can incriminate you afterwards, if they want to cut a deal? Does this count as a fifth amendment defense?
I'm not sure if you could stretch it that far, but what would stop the prosecutor from just giving him immunity?
Okay thanks. But before when I did research I was told by someone in the legal field that the deponent does not have to accept immunity and can still remain silent. Is this false?
There's an easy solution to this. Just have the guy play dumb. The cops see them together, sure. But it doesn't mean he knows anything. Your guy could easily say things like, "I just met them at a party/in a bar so don't know their names. We exchanged numbers and they just called me and told me what to do. I don't know anything else." Unless they can prove 100% that your guy knows the other guys, which I suspect they can't, this is an easy out. They can't charge the guy with obstruction if he doesn't know their names. They can't subpoena him either. So he can just walk away. Eventually though they could figure out he lied, but it probably would be after they caught the other guys, and the police probably wouldn't even care about him by that point. Playing dumb is always the best policy.
Okay thanks. I thought of doing it that way, but in this case, there are two arresting officers who say they saw him with these guys, so wouldn't the court likely believe two cops over a suspect, and therefore want to proceed more aggressively, even though the guy is playing dumb? Also don't pretty much all bars have cameras nowadays which they can follow up on?
Doesn't matter. Even if they're seen together by a hundred people, it doesn't prove the guy knows anything about them. And the guy can also say he doesn't remember the bar they met at. The cops can't pull video footage from every single bar. Deny, deny, deny. No proof, no charge.
Okay thanks. Another lawyer just emailed me, and said that no one can be forced to testify with immunity, and that everyone has the right to remain silent, and refuse immunity if wanting to. Could it be that it's different from state to state? Some states you have to accept immunity and some you can refuse it? Is that where the disagreements are coming in?
States have their own Constitutions and immunity statutes, but I'm pretty sure there is also a federal immunity statute. If the lawyer does criminal law, he's probably right, but I know I've read cases on compelled testimony on grant of immunity and I saw something earlier that implied that if you have immunity you can be compelled. It could vary state to state if that's the federal rule, because states can have stronger protections in their own statutes and Constitutions. Now I'm curious to find out.
So, this appears to be the federal rule from Title 18, USC: " Chapter 601: Immunity of Witnesses This statute covers a specific way to satisfy the Fifth Amendment (right to silence as a form of protection against self-incrimination) to the Constitution, but still force witnesses to testify. Basically, if a witness—whether in a federal court such as a United States District Court or in testimony before a Congressional subcommittee—refuses to answer questions and pleads the 5th, the presiding officer can use the provisions of Title 18 Chapter 601 to forcibly compel the witness to answer the questions." States could provide stronger protections.
Okay thanks. But I was told there is a distinction. The distinction is, is that a witness can only be forced to take immunity and testify, if the witness has already taken the stand. If the witness subpoenaed to appear but then pleads the 5th before going on the stand, then they do not have to accept immunity and can remain silent. The court then excuses the witness entirely. Is this the true distinction that the others were talking about, which is why it is so confusing maybe? However in case, it is not a witness but a defendant who has gotten off, and then will most likely be made a witness by being forced to name the others. Would they try to force a defendant to have immunity and testify, if he was a defendant before the charges were dropped?
Yeah that's true, it just complicates my story. The defendant is going to have to get off for the crime for lack of proof, but then have to be forced to be a witness, even though no one else has been arrested to testify against, and he will have to have a lot of lies pre-arranged. It just makes it more complicated when I was trying to keep it simple and just have him get off, and that's it, but if I must, I will write it that way, if it makes more sense.
... ... You must? Why must you? Aren't you the one deciding that he has something useful to the police, so that they try to force him to testify?
I really just want him to get off at this point. After this he lays low, and the MC has to figure out who his co-conspirators are since he wants them more, rather than the other guy who is a small fish. So it's really a small fish, leading to the big fish type scenario, but I do not want the small fish to rat out the big fish himself, otherwise the MC will not go after them himself.
If I skip it, will the reader ask, "Hey, after the defendant got off, why didn't the court make him a witness and force him with immunity to name his co-conspirators, which case he would have to play dumb?" Would the readers see this as a plot hole for the court not exploring it?
I think that would feel much less like a plot hole than having the court make him a witness and then doing a lot of hand-waving to keep him from having to testify. Ignoring reality and just looking at television, I don't think I've ever seen a fictional criminal get off--as opposed to making a deal--and then go on to testify against someone else. They usually just march triumphantly out of the courtroom and that's that.
When you read books like yours, @Ryan Elder, which sounds to me like a thriller, you'll usually find that they don't follow the law and police procedure, forensics, etc with 100% accuracy. Some authors take lot more time in one or more of those areas than others, but invariably someone who works in one of those professions is going to find something that doesn't quite make sense because the author has had to dispense with some of the more mundane or complex aspects of those technicalities for the sake of the story. The trick, I think, is to be accurate enough in your story that you ground the reader in the "reality" of the events of your story, and then once you've done that you play with these elements in a way that best serves your story. If you get bogged down into making sure that every appropriate aspect of legal and law enforcement procedure is rigorously followed, I think the story will drag and it wouldn't be a lot of fun to read. I like police procedural and legal books, and even when I know they're glossing over something I find that preferable (if it makes for a good story) than reading a manual on police or criminal procedure. Don't have any obvious, glaring plot holes, but don't be overly concerned by minutiae either.
Okay thanks. You said that the guy exchanged numbers with the person though, so wouldn't the cops be able to trace his calls to confirm, and then find out he is lying, if no such calls were made to such a person at a such a time?
Sending a car to a chop shop to be sold as parts or having it crushed or melted down at a scrapyard are much better ways to destroy it in a city environment. Torching cars makes no sense if they are trying to avoid detection; car fires send up plumes of smelly, greasy black smoke that can be seen from miles away and would draw emergency responders like flies. Trying to destroy a car's worth of evidence in a short time frame, undetected, in a populated place would be a pretty tough task. Much easier to hide them on private property, somewhere the cops do not have grounds for a warrant search and casual onlookers will not bump into them, until they can be "cleaned" or destroyed. Now, if the point of torching them is to draw attention while the criminals quietly slip away, then yeah, douse 'em in gas and light 'em up, because that could work like a charm.
Well let's say that a description of the car has already gone out, and the police have a perimeter, and you cannot hide the car, anywhere you know of in that perimeter you are trapped in. Wouldn't it be best to destroy it then?
While I respect @Steerpike's legal knowledge being he's a lawyer, I'd be more confident in his answer had he cited some law or cases. One can get good advice with a careful search for valid sources online. OK I see @Steerpike provided citations later. I'll have to look at how what he posted applies to the following. Follow-up edit: It looks like the citation in post #36 is referring to refusing an offer of immunity. He can correct me if I'm wrong. Can silence ever be construed as obstruction? Silence differs from lying or providing false information when it comes to obstruction: The Tenth Circuit Holds That Arresting An Individual For Obstruction Because He Remained Silent And Invoked “Privilege” Was Without Probable Cause And Thus Violated The Fourth Amendment There are cases where the Fifth doesn't apply: NOLO Law for all Another issue to consider but it probably doesn't apply in your story:
Okay thanks. Well if a witness is subpoenaed to name the others, as in this case, can the witness not name the others and invoke the fifth, the reason being that the others will testify against him, if they are cut a deal? The fifth is not having to incriminate yourself, but can you invoke the fifth, in order to not answer questions that will lead to the arrest of someone else, because that person will incriminate you? Does the fifth apply to that?
