Law School Lecture: "Don't ever talk to police!"

[Data Holmes]

"A law school professor and former criminal defense attorney tells you why you should never agree to be interviewed by the police. "


http://www.youtube.com/watch?v=6wXkI4t7nuc


Very interesting lecture, and pertinent in light of the Knox trial thread.

 

[Nerys Ghemor]

Dude, wow. Right there at 28 minutes...thank God we're in the US indeed.

 

[Lindley]

Long but surprisingly fascinating. I'm certainly going to keep that stuff in mind if anything ever happens.

 

[Wil has a posse]

Advice every single person should heed.

 

[auntiehill]

Very sound advice indeed. People should learn about their legal rights.

 

[Rincewiend]

For some reason i have a deja-vu...

 

[Triskelion]

Why do I have the sudden urge to go out and buy some micromachines?

Interesting. I didn't know this, because taking the fifth looked like you didn't want to incriminate yourself if you were guilty. Nice to know innocent people can do it too. Surprising how many innocent people can unknowingly say something incriminating, and how common it is to be contradicted by mistaken witness testimony. Just one mistaken word and then the police can nitpick your statements for probable cause - and being human, they don't even have reliable interpretations or recollections either. Then once you're in court, you've already got 2 strikes against you - sitting at the defense table and having a witness contradict you.

This is why I never ask people for references. Who are you talking to? What makes you so sure they're in touch with reality?

 

[John Picard]

Advice every single person should heed.

Very sound advice indeed. People should learn about their legal rights.

Just like how people should know the Fourth Amendment doesn't necessarily mean a person must be under police suspicion for requirement of a warrant. If the police ever come to your house, never let them through the door. Once that happens, you nullify your right.

Why do I have the sudden urge to go out and buy some micromachines?

Interesting. I didn't know this, because taking the fifth looked like you didn't want to incriminate yourself if you were guilty. Nice to know innocent people can do it too. Surprising how many innocent people can unknowingly say something incriminating, and how common it is to be contradicted by mistaken witness testimony. Just one mistaken word and then the police can nitpick your statements for probable cause - and being human, they don't even have reliable interpretations or recollections either. Then once you're in court, you've already got 2 strikes against you - sitting at the defense table and having a witness contradict you.

Pretty much. Until you learn to either shut up and/or wait for a lawyer, the police will do whatever they can to get *ANY* information out of you, at which point a prosecutor will twist beyond recognition for the jury's consumption.

 

[Mr. Laser Beam]

Don't you have to be Mirandized before anything you say can be used against you?

 

[Lindley]

Don't you have to be Mirandized before anything you say can be used against you?

Apparently not. As the cop who spoke second said, sometimes they'll just sit in the room and do paperwork without saying anything, and the guy will eventually just start talking.

They also said very clearly that it isn't a Miranda right, it's a Miranda warning. They're required to give it at certain times, but that's all. If they don't give it when they need to, you might be able to use that for legal maneuvering, but otherwise the fact that they've said it changes nothing.

 

[Locutus of Bored]

Don't you have to be Mirandized before anything you say can be used against you?

No. If you start blabbing about the crime before or in the process of being arrested, that can be used against you. They only have to Mirandize you if they are interrogating you in a custodial setting (ie. you've been detained or arrested), but if you start speaking without being questioned you're shit out of luck (not counting basic biographical info which police have the right to ask for like name, date of birth, address, and so forth).

Some states even differentiate between a detention and a formal arrest, so that anything you give up on your own while being held in detention but not yet under arrest can be used against you.

Subtle little differences between the laws of the states like that is precisely why you follow the professor's advice and don't say anything. You can't possibly stay up to speed on all of laws of all the various jurisdictions here.

 

[cultcross]

If I may say, the whole setup seems stacked to ensure that you do incriminate yourself.
Here,the system is:
a) there's no such thing as a consensual search of person, car, or home, so you can't accidentally agree to one. A cop can't search you unless s/he has reasonable suspicion to do so, your consent one way or the other is irrelevant.
b) An arrested person is told on arrival at custody that they are entitled to a solicitor, and asked then and there if they would like one - if they say no, they will be asked to record a reason why. On arrival the solicitor is entitled to know everything we know about the person and have time alone with their client.
c) Interviews are very formal affairs done on tape and to a specific script layout, with the solicitor present. If they choose not to have a solicitor they are asked again on tape why that is. We'd never get away with 'doing paperwork until they cracked and fessed up'. Whenever they're not being formally interviewed or having prints taken or whatever, they're in their cell alone.

The big difference that Americans I've spoken to in the past see as a negative is that it's not just what you say that can be presented against you: your silence can also be used as evidence. That is to say, you aren't compelled to say anything, but if you say nothing, and then later produce an explanation for your actions, a prosecutor can use the fact you didn't mention that before as evidence in court that you may have since invented it.

 

[Robert Maxwell]

The big difference that Americans I've spoken to in the past see as a negative is that it's not just what you say that can be presented against you: your silence can also be used as evidence. That is to say, you aren't compelled to say anything, but if you say nothing, and then later produce an explanation for your actions, a prosecutor can use the fact you didn't mention that before as evidence in court that you may have since invented it.

You can blame that on the "conventional wisdom" that people only keep quiet if they have something to hide, and that people with nothing to hide should cooperate with police. Only the guilty need fear the police, right?

Our criminal justice system is based on results, not facts. Police aren't required to care who's guilty, they're just here to investigate and gather enough evidence--through whatever means they have--to turn it over to a prosecutor.

The prosecutor's job is not to find and punish the guilty, only to ensure that the person charged goes to prison.

Likewise, a defense attorney's job is to get their client off, regardless of whether they committed the crime.

So it's definitely worth remembering that, when you talk to the police, their primary interest is to gather evidence that can be used against you. That's it. The truth is entirely secondary. The "presumption of innocence" is a joke. It doesn't exist as far as our criminal justice system goes. The only real effect it has on anything is that the word "alleged" is used by journalists.

Having sat in on various court proceedings, I've seen that prosecutors consider a mere arrest enough to demonstrate your guilt. Even if you were never convicted or even charged, they'll use past arrests, traffic tickets, whatever, to paint you as a menace to society. There simply is no presumption of innocence, as much as we like to claim there is.

That's not to say innocent people go to jail en masse, or that the guilty always walk free, but you have to remember the role of each person in the process, and use that to guide your behavior. If you're being questioned by police, you are a suspect, end of story. Say nothing without a lawyer.

 

[propita]

One's silence cannot (or is not supposed to be able to) be used against you. Which is why one should "lawyer up" immediately--the advice from my Criminal Law/Criminal Procedure professor, formerly a DA, currently a judge.

He gave a scenario: Every Tuesday around 11 am, you drive your car to a certain building to drop off papers for your boss. One Tuesday, a neighoring store is robbed, around 11 am, and your car is spotted leaving the scene. Witnesses state the car looked familiar, that it had been spotted in the area before. Police ask you if you drive such-and-such car, whether you were in the area that day and time, and why. Oops! Despite your totally innocent story, you're a suspect. Oh, it'll all get straightened out--AFTER you've been charged and photographed and had to pay for an attorney and got the innocent mess scared outta you.

No Miranda is required when "just asking" questions at the scene--it's not considered custodial interrogation. But the right to an attorney has not yet attached either. You can get one, but there's no Constitutional right, yet.

 

[Mr. Laser Beam]

Every Tuesday around 11 am, you drive your car to a certain building to drop off papers for your boss. One Tuesday, a neighoring store is robbed, around 11 am, and your car is spotted leaving the scene. Witnesses state the car looked familiar, that it had been spotted in the area before. Police ask you if you drive such-and-such car, whether you were in the area that day and time, and why. Oops! Despite your totally innocent story, you're a suspect.

Even though your boss can vouch for you?

 

[Locutus of Bored]

Did you watch the video, Mr. Laser Baba?

 

[Nerys Ghemor]

Every Tuesday around 11 am, you drive your car to a certain building to drop off papers for your boss. One Tuesday, a neighoring store is robbed, around 11 am, and your car is spotted leaving the scene. Witnesses state the car looked familiar, that it had been spotted in the area before. Police ask you if you drive such-and-such car, whether you were in the area that day and time, and why. Oops! Despite your totally innocent story, you're a suspect.

Even though your boss can vouch for you?

You hope he can vouch for you. And even if you can, you can still get burned. The video goes through a scenario that can easily happen that's a lot like that.

 

[cultcross]

The big difference that Americans I've spoken to in the past see as a negative is that it's not just what you say that can be presented against you: your silence can also be used as evidence. That is to say, you aren't compelled to say anything, but if you say nothing, and then later produce an explanation for your actions, a prosecutor can use the fact you didn't mention that before as evidence in court that you may have since invented it.

You can blame that on the "conventional wisdom" that people only keep quiet if they have something to hide, and that people with nothing to hide should cooperate with police. Only the guilty need fear the police, right?

I think you could make a fair argument that if you have a perfectly innocent explanation for something, why not give it when asked? Especially when not giving it renders you a suspect, perhaps justifiably. Having said that, if the rest of your post on the American system is true - cops just want to pin it on you - then I can understand why you'd say nothing. Our system is a little different, not because our cops are saints or anything, but because the Crown Prosecution Service, the equivalent of the DA's office, is really picky about what they'll run with in court - they expect rock solid evidence, every i dotted every t crossed before they'll accept a file - an uncorroborated 'confession' would get the file back with 'Unsuitable to proceed, No Further Action' stamped across it. The simple reason for that is the very thing that is usually the bane of the public sector: lack of money . They don't have the funds to run loads of losing cases, so they want to go to court with unshakeable evidence.

Every Tuesday around 11 am, you drive your car to a certain building to drop off papers for your boss. One Tuesday, a neighoring store is robbed, around 11 am, and your car is spotted leaving the scene. Witnesses state the car looked familiar, that it had been spotted in the area before. Police ask you if you drive such-and-such car, whether you were in the area that day and time, and why. Oops! Despite your totally innocent story, you're a suspect.

Even though your boss can vouch for you?

That 'evidence' such as it is would be entirely circumstantial, I couldn't even see an arrest on that basis holding up here. If such non-evidence could actually lead to a conviction, I think certain posters may have been a bit too ready to criticise Italy's system.

 

[propita]

That's part of YOUR story. You're still a suspect until the cops hear the boss' story and are convinced that it's valid.

All they've heard is that you just admitted that you were present at the scene of the robbery, at the approximate time of the robbery, and driving a car similar to that described by witnesses to the robbery. By that one sentence, and only that sentence, sounds like a viable lead, huh? Enough to question you more, maybe not under probable cause, but they'd likely ask more.

 

[Mr. Laser Beam]

Did you watch the video, Mr. Laser Baba?

I'm watching it right now.

Another question: If you are in the interrogation room and you *do* say nothing, how long can they keep you there?