In recent news, the legal concept of entrapment has been frequently mentioned. The general idea behind entrapment is that law enforcement officers should not be in the business of tricking law-abiding citizens into committing a criminal offense and then prosecuting them for the violation. However, as is often the case, the entrapment doctrine is poorly understood and is often mischaracterized by the talking heads on television news programs.
Entwined with the entrapment question is that of cooperation with police inquiries: is a citizen required to answer questions put to them by a law enforcement officer? Over the next two columns, I will try to clear up misconceptions that swirl around police interviews and the entrapment doctrine.
As a bedrock principle, the right to remain silent when questioned by law enforcement officers is enshrined in the constitutions of both Virginia and the United States. This means that it is never a crime for a citizen to simply refuse to answer questions put to them by a law enforcement officer. Consider, for example, a routine traffic stop for speeding. If a police officer asks the driver: “Sir, why were you speeding this evening?” it is entirely lawful for the driver to politely respond: “Officer, I would prefer not answering any questions in light of my right to remain silent.”
As a corollary, I note that police officers are legally allowed to ask questions of citizens. Furthermore, police officers need not inform a citizen of their constitutional rights, such as the right to have an attorney present during questioning and the right to remain silent, unless the citizen is under physical arrest or its functional equivalent.
In my traffic stop scenario, for example, the officer would not be required to advise the driver of his constitutional rights because the driver has not been physically arrested. I explored the law surrounding police interrogations of arrested persons in more depth in the January 2018 edition of this column.
Of course, while a simple refusal to answer questions is never a crime, a person who elects instead to lie to law enforcement may be committing an offense. Under Virginia law, if a person makes a materially false statement about an offense they did not commit, they are guilty of Obstruction of Justice, a misdemeanor punishable by up to 12 months in jail.
It appears that the Virginia legislature accepted the fact that a person may elect to make false statements about a crime the police suspect them of committing, because such untruthful statements do not constitute a criminal offense.
Federal law, however, takes a different tack. Under 18 U.S.C. §1001, it is a crime for a person to make “any materially false, fictitious, or fraudulent statement” to a federal law enforcement agent, regardless of whether the person is a criminal suspect or not. A violation of this code section is a felony punishable by up to five years in prison for each materially false statement made.
Law enforcement does have a mechanism by which it can attempt to pierce a person’s refusal to answer questions: the investigative grand jury. In an investigative grand jury proceeding, a potential witness is served with a subpoena and required to appear in court. It is worth mentioning that a subpoena is not a request to appear, it is an order to do so. Willful failure to appear pursuant to a lawfully served subpoena may result in the witness’ arrest.
In the grand jury, the witness has the right to “take the Fifth Amendment” and refuse to answer questions. However, the Fifth Amendment protection only applies to statements that tend to incriminate the witness. If the witness only has information about the criminal actions of another person, they cannot avail themselves of “the Fifth” and the presiding judge may require them to answer questions purported to them.
Even if the witness has lawfully invoked the Fifth Amendment, the prosecutor may elect to provide immunity to the witness. After a grant of immunity, the witness could be required to answer relevant questions, but could not be charged or prosecuted for offenses related to their statements. Finally, grand jury proceedings are conducted under oath, so any materially false statement constitutes perjury and can be prosecuted as such.
Next month I will discuss entrapment.
The writer is Commonwealth’s Attorney for Alexandria.