When to Assert Your Right to Silence in a Federal Investigation in NY

When to Assert Your Right to Silence in a Federal Investigation in NY

Getting questioned by federal investigators can be intimidating. You may wonder, should I answer their questions or keep silent? When is it best to assert your right to silence? This article will walk you through some key considerations.

The Fifth Amendment Protects Against Self-Incrimination

The Fifth Amendment of the U.S. Constitution says that no one “shall be compelled in any criminal case to be a witness against himself.” This means you can’t be forced to give answers that could implicate you in a crime. So if federal agents start asking about your potential criminal activities, you can legally refuse to answer by asserting your Fifth Amendment right.
However, there are nuances around when and how to invoke this right. Simply staying silent or asking for a lawyer won’t necessarily protect you. You have to clearly state that you are asserting your Fifth Amendment privilege against self-incrimination¹.

There May Be Consequences For Total Silence

While you shouldn’t answer questions that could incriminate you, staying completely silent through a whole interrogation could backfire. Prosecutors may portray it as suspicious behavior indicating guilt or an attempt to obstruct justice². So it’s usually best to politely decline specific incriminating questions while cooperating otherwise.
For example, you could say something like: “I apologize, but on advice of counsel I cannot answer questions about that topic, as it may tend to incriminate me. But I’m happy to cooperate in other aspects of your investigation.”

Get Legal Advice Before Talking to Investigators

Speaking with federal investigators without guidance from an experienced criminal defense lawyer is very risky. Remember that investigators are trying to build a case against you. They may use intimidation or trickery to get you talking. A lawyer can advise if and how you should engage.
Some key questions for a lawyer:
Am I a target of the investigation or just a witness?
What topics are safe to discuss?
What’s the best way to invoke my Fifth Amendment rights?
Often it’s smartest to have your lawyer negotiate the terms of an interview or grand jury appearance on your behalf. Or they may advise you not to speak with investigators at all.

What If Investigators Have a Subpoena?

If federal agents serve you with a grand jury subpoena, you must appear as directed. But that doesn’t mean you have to answer their questions. You can still legally invoke your Fifth Amendment right against self-incrimination on a question-by-question basis while testifying³.
However, if you refuse to testify altogether, the prosecutor may ask the judge to grant you “immunity.” This means your testimony couldn’t be used against you in a criminal case. With immunity in place, you could be held in contempt of court for continuing to refuse questions.
So if you get subpoenaed, have your attorney file a motion to quash or modify the subpoena. They can also seek protective orders to limit questioning topics and preserve your privilege against self-incrimination.

What About Lying or Obstruction Charges?

Some think they can outsmart federal questioners by lying or concealing evidence. But this can create even bigger legal problems. You could face criminal charges like:

• Perjury
• Obstruction of justice
• False statements
• Contempt of court

So while you have the right not to provide incriminating truthful answers, lying to federal investigators is still a crime. Assert your Fifth Amendment protections instead of answering untruthfully. And never hide, destroy or tamper with evidence.

When Talking to Investigators, Be Careful What You Say

Anything you say to federal investigators could come back to haunt you. So proceed with extreme caution:

• Don’t answer questions without consulting your criminal defense lawyer;
• Clearly invoke your Fifth Amendment right against self-incrimination when necessary;
• Be cooperative on non-incriminating topics;
• Never lie or obstruct justice;
• Get experienced legal help fighting subpoenas if possible.

With the right legal advice and carefully avoiding discussing your own potential crimes, you can get through a federal investigation without unnecessary trouble.