Fifth amendment, self-incrimination, criminal context, civil context, assert privilege, negative inference, legal advice, police questioning, civil cases, adultery allegations, legal rights, constitutional rights, legal scenarios, legal perspective, legal guidance, 5th Admendment.
What To Do When… You Are Being Questioned.
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The objective of the What To Do When… podcast is to discuss common legal scenarios faced by everyday citizens in Virginia. Critzer and Cardani practice law throughout Virginia and focus their practice around the state’s capital of Richmond, in the Piedmont region. Tune in and subscribe to learn about legal topics such as reckless driving by speeding, bad lawyers, Will Knows Weed, juvenile defense, juvenile sex crimes, reckless driving, the legalization of marijuana in Virginia, divorce 101, Child Support, There is Still Hope, and others.
What To Do When… You Are Being Questioned.
On this legal video podcast chat in Critzer Cardani’s What To Do When… podcast series, join our hosts Jackie Critzer and Scott Cardani as they chat about What To Do When… You Are Questioned. This video and audio podcast episode focuses on how, when and when not to respond to questioning with or without legal representation here in Virginia.
Tune in today for not only our top take-aways, but also some chat about the following subject matters and other helpful action items from a ‘legal chat slant’ from Critzer Cardani’s legal partners.
* Scott Cardani and Jackie Critzer discuss the fundamental right not to talk, which is protected by the Fifth Amendment.
* Jackie highlights that in Virginia, adultery is a misdemeanor, and asserting the Fifth Amendment privilege can lead to negative inferences by the judge.
* Jackie and Scott agree that each case should be evaluated on an individual basis, considering the specific facts and circumstances.
* Scott advises that individuals should seek legal counsel before answering questions in any context, including traffic stops or interactions with school authorities.
* Jackie and Scott stress the need for education and awareness about the Fifth Amendment to protect oneself in various legal scenarios.
* Jackie and Scott encourage listeners to be informed about their rights and to seek legal advice before answering questions in any legal context.
The objective of the What To Do When… podcast is to discuss common legal scenarios faced by everyday citizens in Virginia. Critzer and Cardani practice law throughout Virginia and focus their practice around the state’s capital of Richmond, in the Piedmont region. Tune in and subscribe to learn about legal topics such as reckless driving by speeding, bad lawyers, Will Knows Weed, juvenile defense, juvenile sex crimes, reckless driving, the legalization of marijuana in Virginia, divorce 101, Child Support, There is Still Hope and others.
Thank you for sending us your feedback, questions, or topic suggestions for future #WTDW | What To Do When… episodes by emailing [email protected].
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Transcript:
What To Do When… Intro 00:01
Welcome to What To Do When… A podcast from real lawyers with real perspective, where we explore a variety of legal issues and scenarios. Each week we focus on a new topic and discuss what to do when and if any of these legal scenarios ever happened to you or a loved one. With over 40 years of combined legal experience, our hosts offer their unique perspectives and insights on a range of real life legal situations.
Jackie Critzer 0:28
Hi, welcome back to another podcast here at crizer Cardani in Richmond, Virginia. I’m Jackie.
Scott Cardani 0:34
I’m Scott. Hey, Jack what’s on the docket for today?
Jackie Critzer 0:37
What To Do When… You Are Questioned.
Scott Cardani 0:41
What do you mean? You can’t ask questions now.
Jackie Critzer 0:43
Oh, no, this is how to respond to the questions, right?
Scott Cardani 0:45
What do you mean? Explain. Jackie, come on.
Jackie Critzer 0:48
More specifically. Okay, this is really about asserting your fifth amendment privilege. Which is what your your privilege against self incrimination, right?
Scott Cardani 0:59
Exactly. Your right not to talk. Which…
Jackie Critzer 1:01
Do you do you have a right not to talk?
Scott Cardani 1:04
It’s Amazing. We are losing that right every day, I believe. But yes, we do have a right, fundamentally, constitutionally, a right not to talk. And why is that?
Jackie Critzer 1:13
Well, and even more specifically, when? When do you have the right not to talk? So there’s really two different avenues that you can assert your fifth amendment privilege against self incrimination. There’s the criminal side, right? You don’t. In fact, most criminal defense attorneys, I think you’d agree, would say, don’t talk in court. Don’t talk to the police. You can assert your fifth amendment privilege because anything you say, you’ve all you’ve all heard, anything you say can and will be used against you, so you don’t have you don’t have any duty to report what you have done, what they think you’ve done, or to answer questions about what they think you’ve done. They being the police.
Scott Cardani 1:13
Yes, okay.
Jackie Critzer 1:13
Of any jurisdiction, state, local, federal, okay. But then there’s another avenue that you can assert your fifth amendment privilege against self incrimination, and believe it or not, it’s in the civil world. Well, civil does that doesn’t make sense. How can you protect yourself from criminally incriminating yourself in a civil case?
Scott Cardani 2:14
Well, it’s the same sort of thing if you’re talking about a crime you committed then and you’re talking about it in a context of a court, or in front of an officer, for instance, or in front of another lawyer, all of a sudden, you put out there something you’ve done that there is a consequence to and they have the power to report it. Once the knowledge is out, they have the power to report. So, you know, this is really a difficult kind of thing that most people it’s a lost art, quite frankly, in the legal field of having the ability not to answer questions we always have the right not to answer. And there are some federal stuff that you’ll see in some subpoenas and things where it gets really quirky. And I believe none of that should ever happen. I think you always have the right not to talk, and you should have that right all the way to your grave.
Jackie Critzer 2:59
Let’s, break it down in a civil context you might see this, and we see it most often in cases on adultery, and we haven’t really touched much on adultery in our podcast. We’ll definitely get to a podcast on adultery, but you say you receive a complaint or a filing of divorce, and your spouse has alleged and said that you committed adultery with John Smith or Jane Doe at the Holiday Inn on February the third… and…
Scott Cardani 3:32
or you beat her, you know, or they beat you, or, you know, there’s an allegation of physical…
Jackie Critzer 3:36
Abuse, sure, absolutely that Maybe you didn’t you weren’t charged for and so here’s the context of using and asserting your fifth amendment privilege. There’s a lot of confusion about it. When do you? How can you? But you definitely can in a civil case, let’s say you’re accused of adultery. You’re accused of some crime as part of a divorce. If you don’t assert your fifth amendment privilege at the very beginning. Instead of saying no, I wasn’t with Jane Smith or John Doe, no, I was, you know, that’s an answer yes, saying yes or no is an answer, and you open yourself up to then not being able to assert your fifth amendment privilege later on.
Scott Cardani 4:16
Exactly yeah.
Jackie Critzer 4:17
In those same proceedings later on, okay, so you have to, you have to use it at the beginning, and then you have to use it all the way through, even when it comes to, let’s say, trial. Now maybe you’ve gone from just the pleading stage, where it’s just paperwork back and forth between attorneys, and now fast forward several months, or sometimes a couple of years later, and now you’re in front of a judge and you’re having to answer questions again about these allegations of adultery. You still have to assert your fifth amendment privilege if you’re going down that line. But what’s the problem with that, Scott?d
Scott Cardani 4:51
Well, the last question is adultery a crime?
Jackie Critzer 4:54
In Virginia, it is a misdemeanor?
Scott Cardani 4:56
It’s a misdemeanor. Didn’t know that, did you? So, yeah. I mean. Yeah, you’ve got to realize that you’re in for the old saying, In for a penny, in for a pound. You can’t be wishy washy about this. You have to, once you assert it, it’s asserted all the way through. You don’t back off of it in any way, shape or form. And where most people get there in a little bit of trouble, they want to answer something so they feel like they there’s almost a pressure in these situations to give some little piece and maybe if I give a little piece of information, they’ll back off, and that just swings the gate wide open. Once you open the door, you’ve opened the door.
Jackie Critzer 5:29
That’s right.
Scott Cardani 5:29
Once you cracked it’s kind of like being outside or being inside an air conditioning. You crack the front door a little bit, and that heat starts rolling in. I mean.
Jackie Critzer 5:37
You can’t close the door.
Scott Cardani 5:38
Can’t close it.
Jackie Critzer 5:39
That’s it.
Scott Cardani 5:40
It’s open. And so that Heat’s flowing through, and you’ve already that heat’s already came across the threshold, you’re done so.
Jackie Critzer 5:46
But – there’s a but, there’s a big but.
Scott Cardani 5:49
Big.
Jackie Critzer 5:50
When you decide to assert your fifth amendment privilege in a civil case like we’ve just described, the judge can now infer that there was a negative answer to the question. So if the allegation is, you committed adultery, and instead of saying, No, I didn’t, or Yes, I did, and you say, I assert my fifth amendment privilege, the judge can infer whatever negative response would fill in that blank.
Scott Cardani 6:19
In other words, he can assume, almost to the point that you did it right, because you’re not answering about it. That’s right, which, again, me personally find completely offensive and against all constitutional manner. I don’t even know how that’s going to stand up, but anyways, it’s all another argument. But yes, so now in statutory form in Virginia, not just case law, but now the judges are allowed to inform that, infer that negative so really, that becomes a reason not to even.
Jackie Critzer 6:50
Well, why would you why? I mean, if you’re going to get the negative inference, what difference is it going to make? Anyway?
Scott Cardani 6:57
Well, I think again, one of the things that we do so well is we’re going to take a case by case basis. And you know, your facts and circumstances might be different than somebody else’s exercises. So you can’t really give a blanket answer to that question. It really is going to be an individual thing, and you’re going to need a lawyer to walk through every step of that and why you would or wouldn’t based on your your facts and circumstances. So if you don’t have, you know, a good reason to do it, you may not be worth it. It may actually hurt you in the end. But you know, a lot of times you assert it to get out of depositions and a bunch of questions that are going to go further and further and further, and maybe there’s more behind the scene than you need to you know, once you start answering one question, it may lead to some all things. Maybe, maybe it’s better, I guess, say this, say that the person that you committed adultery with, if they find out it’s really bad, so it’s better for the judge to establish a negative inference that you did commit adultery. But maybe the person who you you don’t want anybody to find out who did who you did it with, or the number of people you did it with, or whatever. I’m just saying, there could be a good reason for that, because say it’s, say it’s the sister we’ve had, you know, crazy stuff, you know. And, yeah, the family dynamics could be just horrific, you know, could cause people heart attacks and all kinds of stuff. So, you know, families to blow up all kinds of things. So sometimes there, there’ll be a reason that you still want to assert your fifth amendment privilege and take the hit with a negative inference. Because either way there’s a negative inference, right? Either way, there’s a negative it just depends how much. And I will say this, well, we’ll talk about that, in the adultery episode. I don’t want to go down the adult road.
Jackie Critzer 8:48
So, I think it’s important, though, to make sure that when you’re in a situation like we’re talking about, number one, either you’re making allegations of criminal behavior against your spouse in a civil case, or you are the spouse who has been accused of said things you should be dealing with an attorney who knows either the workarounds of the Fifth Amendment or how to properly assert the Fifth Amendment privilege. Not everybody can, not everybody will, not everybody understands the ins and outs. I mean, I had a case a few years ago where in the in the initial pleadings, we alleged, you know, various counts of adultery with various people at various locations and and the attorney at the time answered on behalf of the client and denied the allegations, did not assert the Fifth Amendment privilege. Then We sent discovery, which we’ve talked about before, but interrogatories, a list of questions that we can ask, basically, as long as it’s somewhat related to the facts of the case. You can ask the questions and they have to answer, okay, and then so in those answers, guess what?
Scott Cardani 9:52
They tried to do, assert their fifth amendment.
Jackie Critzer 9:54
They tried to assert their fifth amendment privilege. And I had to write to the attorney and say, well, now we know better. You can’t you? Answer first and then later. Say, now you assert. Now you’ve opened the door. Your client has to answer these questions. Oh, you’re right. Let me back up and let me do this. Now, if you’re that client who who relied on your attorney to protect you, really.
Scott Cardani 10:14
Yeah.
Jackie Critzer 10:15
And then you realize, oh, wait, you didn’t. You didn’t tell me that. You didn’t tell me how to answer this better. Now you’ve really jeopardized perhaps some important pieces of the case. Maybe not. Maybe it’s not going to matter at the end of the day, but I think you would rather be under the wisdom of and engaged with the wisdom of someone who understands how the Fifth Amendment works.
Scott Cardani 10:37
And let me say this broadly. I mean, this is why we said at the beginning, what to do when you’re questioned or you have questions. So many of us are conditioned from childhood to answer people in authority.
Jackie Critzer 10:51
Oh, sure.
Scott Cardani 10:52
And like the same thing, a traffic tickets, quasi civil, quasi criminal kind of thing. So you know, but the cop, first thing the cop asked you when he pulls you over, it says, speeding. Where are you speeding? It and 95% of people go, Sure, yeah.
Jackie Critzer 11:05
Do you know why I pulled you over?
Scott Cardani 11:06
Do you know why I pulled over? Oh, yeah, I was speeding, you know. Again, you we’ve got to step back to the point of thinking about our answers and not answering.
Jackie Critzer 11:15
Was it the smoke that was rolling out of my window, you know?
Whatever. So, basically, what we’re trying to convey to you all is, when you’re in a situation and questions start coming at you in a position that you know there’s something there, regardless of what it is, you really need to seek counsel on how to walk through those questions, because so many people over my career, have thought they could through their charismatic personality, or whatever it is. They think they they’re so used to getting away with stuff, they think they’ll be able to talk their way out of it. And normally what they do is they talk their way into it.
Or into even more charges, not just the one, but sometimes even more charges. Like you’re saying, get pulled over and and do you know why I pulls you over? And you can maybe list something, and maybe that’s not the thing that they pulled you over for. So now you now you’ve just added to the list.
Scott Cardani 12:10
Because I’ve been drinking.
Jackie Critzer 12:11
Because I was swerving between late I mean, right, there’s so many, and we’re being a little bit silly and tongue in cheek. But really, you know, this comes down to also say when you’ve been called in by the police at whatever level.
Scott Cardani 12:26
Or the school to answer questions.
Jackie Critzer 12:29
Right? Can you assert your fifth amendment privilege if you’ve been you know, the police have knocked on your door and said, Hey, why don’t you come downtown with us? And because it’s always downtown, right? They never say, Let’s go to the suburbs and talk about this. Let’s go downtown, and you go in and like Scott said, what do you what do you want to do? You want to tell them, because the truth is what’s right, and you surely, if you tell them the truth, this will clear up any confusion about your potential involvement or your knowledge, or whether you were a conspirator or in some way connected to to the crime that they’re asking you about, but, but under no circumstance do you have to answer those questions. Sorry. How many times do you hear it all? They lawyered up.
Yeah.
What’s wrong with that?
Scott Cardani 12:32
Yeah, there’s always a negative inference. And I just think we as a people, it like I taught my kids, and everybody thought I was a jerk for doing this, especially principals. But I taught my kids when they were in school, you don’t answer any questions, period, because you’re not intelligent enough to answer a question at your age. So if you get pulled in the principal’s office and it’s, Hey, Johnny, this happened. What do you know about? And you start blabbing off all of a sudden, there’s seven crimes you committed on the way to the principal’s office that you’re talking about, they had no idea happens all the time. I had a personal experience where there was a text message string and all this stuff, and the person who submitted the text message stream only submitted a portion of it. And of course, the school go, did you text that? And of course, the answer is yes, he did, but you didn’t see the context of what you did in so all of a sudden there’s all this trouble because the young person wasn’t adept enough. And I’ll say this, James Duane, an old professor at Regent University still there, has this great video, and I think you wrote a book on it, on the Fifth Amendment, I wholeheartedly suggest.
Jackie Critzer 14:19
I think it’s called Don’t Talk To Police. Yeah, there’s like, multi millions of views on YouTube.
Scott Cardani 14:26
And it’s really… we were there when he did it. I was, it’s been a long time. But we had a class, and we actually had the guy, the officer, in the classroom, and we were going through this because we were teaching evidence. Well,
Jackie Critzer 14:37
right? It was the first half of this video is him talking is Professor Duane talking about, don’t talk to cops. And the second half is, is the police officer saying he’s right, don’t talk. And this is why.
Scott Cardani 14:50
Everybody I know who’s a personal friend of mine, who’s a police officer, will tell you, and your personal friends will say, very few crimes can be proven without the person admitted to him – admitting it.
Jackie Critzer 15:03
MmmHmm.
Scott Cardani 15:03
So again, when the point of this whole video, the point where we’re trying to get across is, look, you have a right not to talk. Use it, because quite often it’s so much more important. There’s a time to talk. There’s a proper way to talk. All these things that we don’t. We aren’t taught that. I mean, our school civics has gone the way of the wind. We don’t learn about these things and why we have them, why these privileges were given to us, and why this whole thing is there. Because when you don’t understand it, we are taught growing up. You know, if an adult asked you if you did it, you say yes, sir, and you move on if you did it. That’s not always the best advice, because sometimes there’s all kinds of facts and circumstances that aren’t being considered, and you can create a mess for your children that you think they’re being, having integrity and doing all this thing, which they are. But because of the way the system is, especially nowadays, you can’t do it. Same in divorce, same in all these things. You have to talk to somebody before you talk.
Jackie Critzer 16:03
And you know, most of the time you don’t have an attorney on speed dial that you can say, hey, they’re they’re calling me down downtown. What do I do? So it’s just being educated, right? It’s not just in a criminal sense, in so far as not talking, it’s also in the civil sense, so be sure, make sure you understand how to use the Fifth Amendment privilege. Or if you don’t understand, call us. We’re happy to talk to you. Send us an email at [email protected]. We’re happy to answer those questions for you and get you the help that you need. But Be informed before you start answering questions, especially when it comes to persons in authority.
Scott Cardani 16:44
Like and subscribe. Have a good day.
Jackie Critzer 16:45
Thank you.
What To Do When… Outro 16:47
We hope you’ve enjoyed this episode of What To Do When… For more episodes, be sure to subscribe to our podcast and we encourage you to check archives to listen to previous topics. Tune in next week for a new episode and some fresh perspective from Critzer Cardani.
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