Will Chris Christie’s Former Aide Be Convicted Of A Crime For Refusing To Testify?

Aiming to get to the bottom of the developing bridge scandal emanating from New Jersey Gov. Chris Christie (R), the New Jersey State Assembly called Christie appointee David Wildstein to testify Thursday. Wildstein, a high school classmate of Christie’s who stepped down as director of interstate capital projects for the Port Authority of New York and New Jersey in December, invoked his Fifth Amendment right to remain silent, prompting the the legislature to hold him in contempt.

Wildstein’s silence on even the most basic questions has led many to conclude that he has something to hide. But guilt or innocence notwithstanding, what of Wildstein’s constitutional rights? Can he be held in contempt for staying silent? In all likelihood, Wildstein will not ultimately be convicted, given the extensive protection of the Fifth Amendment.

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Checkpoint freedom

I wrote about this incident when it happened because of the malicious use of tasers, but this article discusses it in the context of "internal security checkpoints" and the growing civil disobedience against it:

During a routine trip from San Diego to Phoenix in 2009, Pastor Steven Anderson was stopped at an internal immigration checkpoint about 70 miles from the Mexican border. A stern-looking Border Patrol agent asked Anderson to provide proof of citizenship and requested permission to search his car.

The persistent pastor declined both, citing his Fourth Amendment protection against unreasonable searches and his Fifth Amendment right against self-incrimination. He then asked to be allowed to go on his way. The request was denied.

After a period of dithering, agents announced that a police dog had alerted to potential contraband in the vehicle. They instructed Anderson to pull over into a secondary inspection area. The pastor repeatedly refused, at which point a Border Patrol agent and a state police officer simultaneously broke both windows of his car and shot the pastor with Tasers from each side, delivering lengthy and repeated shocks while Anderson repeatedly screamed in agony.

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When You Don’t Have The Right To Remain Silent

Anyone who’s ever watched a crime show knows that the right to remain silent is a fundamental constitutional protection for those who are arrested and read their Miranda rights. But what happens when you aren’t yet in police custody but are nonetheless being questioned by police? In a 5-4 decision along ideological lines, the U.S. Supreme Court held Monday that a man questioned before police custody and not yet read his rights had not invoked his Fifth Amendment right to avoid self-incrimination, when he simply did not answer a police question and remained silent.

The ruling means that prosecutors were entitled to use Genovevo Salinas’ silence against him during a murder trial to argue that jurors should infer guilt from his silent reaction to a police question, even though Genovevo was not present at trial and couldn’t counter this assertion. Salinas had voluntarily answered several other police questions before falling silent on the question of whether shell casings found at the crime scene would match his gun.

While Justice Samuel Alito held for the court that Salinas would have had to explicitly “assert the privilege” by referring to his right to remain silent, the dissent found that defendants cannot be expected to utter particular code words, as the Supreme Court has long said there is “no ritualistic formula” necessary to invoke the privilege.

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