Why its so important to remember: “don’t talk to the cops; you’re vocabularly shrinks to a single word: ‘lawyer'”.
While this seems effective, it doesn’t seem likely to extort false confessions either, does it? I can see how it’s still a case of self-incrimination, but from the way you explain the problems with self-incrimination, it doesn’t seem to share them. There’s no oath to tell the truth which the accused would fear legal charges or eternal torment for breaking, no (as far as I can tell) significant risk of false confessions, etc. Is it just considered unfair based on an ideal of law enforcement where the police gather the evidence on their own? Or is it just a problem because of the tradition (and constitutional amendment!) against self-incrimination of all kinds? Is psychology just considered cheating and bad form by the critics?
When you come into the police station, you’re scared and probably tired. You’re unsure of yourself.
The cop seems alert, confident, and absolutely sure that he already knows what happened. Your natural instinct is to agree with the authority figure and the person who appears to know what he’s talking about.
In a situation like that, it’s easy to listen to your instinct and not to your memory. To say something that in hindsight you know is wrong, just because it’s obviously what he wants. You might even start to wonder if you did something you don’t remember.
So basically, it’s a whole lot easier to stop and get a lawyer before they start interrogating you than to control what you say once you let them get going.
Actually, this is the technique that gets so many of those false confessions. A heck of a lot of those wrongly-convicted Innocence Project cases were the result of just such false confessions. The technique is meant to make the subject believe he has no choice, that the cop is on his side, and that an admission will make him better off — when the exact opposite is true. And it’s carefully orchestrated to preclude a defense.
I didn’t go into all the various tricks and traps for space reasons — my notes alone from back when I learned the technique are about an inch thick, typed — but think about it: An innocent person is trapped in an incredibly stressful situation that keeps getting more and more insane. How can the police believe this? Someone really saw me there? There is no escape. It’s not physically painful, but the anxiety is just as severe. The suspect isn’t allowed to deny anything or say anything that isn’t twisted against him. He’s lied to about what the facts are — what witnesses said, what codefendants said, what evidence has been found. He’s lied to every step of the way — that the interrogator’s here to help and just trying to gather facts, the reasons for the questioning, his own interests, what the evidence is, what others have said, what the police can (or will) do for him, what is going to happen next, the severity of the situation, the severity of the offense. He’s pressured and pressured and finally given only one escape hatch: admitting something.
To make that escape hatch look enticing, the interrogator misleads him about the severity of the consequences, makes it look like no big deal. Makes saying those words seem like the BEST thing to do.
In such conditions, even innocent people say things that get them in trouble. They may try to recant that confession the very next day, after they’ve had time to reflect, but when was the last time such an obviously self-serving denial swayed a jury? And that confession is often the only meaningful evidence against them.
Could one such accused suspect obtain a writ of discovery to know exactly what evidence the police do and do not have against them, before they say anything?
What sorts of remedy does a suspect have against false allegations and coerced incrimination? Could a coerced confession be signed as under duress – invalidating it?
Could a suspect demand/obtain a trial before ever speaking anything to Police Enforcement, a Lawyer, or Judge?
1. Discovery’s not something you’re entitled to until after you’ve been formally charged and the case is being litigated. Each state’s rules are different on how it’s done, and actual practices vary from county to county. You’re not going to get it before you’ve been charged with anything, however.
Don’t think in terms of “what should I do before I say anything” — just don’t say anything, period.
2. You could allege that your coerced confession was signed under duress, and some have done so successfully, but that’s no guarantee that the jury’s going to believe you.
3. You can absolutely go to trial without ever speaking to the police. I can think of zero reasons why anyone suspected of a crime should speak to the police.
Going to trial without having spoken to the prosecuting attorney is normal — occasionally it makes sense when one is trying to prevent a wrongful prosecution, trying to get a better plea bargain, or trying to become an informant, but most suspects and defendants will never speak to the D.A.
As for the judge, all you ever really need to say is “not guilty” when formally charged. And sometimes not even that.
Going to trial without having spoken to your own defense lawyer, on the other hand, would be kinda silly.
1. Thanks for the clarification on Discovery. I suppose then the best and only thing to do in the circumstance is to continue to affirm innocence, albeit easier said than done.
2. I didn’t mean allege, I meant to put it right down on the paper at the time it’s presented for your review. Would that work?
3. So you recommend against sui juris presentation? I can think of no reason why a person present should desire to be present again (re-present) though, especially if innocent.
4. One other question: Is there any reason why, before or during an interrogation, a suspect could not contract personally with the interrogator (obviously retaining a record of the contract for proof of it), in any lawful capacity?
1) Still wrong. Watch the video linked to by Rich (it’s a couple comment threads down from here) to see how almost anything you say can be used against you. The only thing (quite literally the only thing) you should tell the police is that you want your lawer.
But for goodness sake be polite about it.
It can and does extract false confessions. The police wear you down and will make it seem like they have a great deal of evidence and if you don’t confess to their reasonable version of the crime things will go much worse for you in court.
Some people are actually convinced of their guilt and fabricate memories, especially if their memory of the time in question was hindered by fatigue or alcohol.
The entire technique is pretty much, “We are going to throw you in prison no matter what, so here, why don’t you tell us what we want to hear so we don’t throw you in prison for as long?”
It’s also a very, very obvious case of bullying.
Here’s a fascinating lecture by a law professor related to this subject and contains other examples of how easy it is to end up with invalid confessions: http://www.youtube.com/watch?v=6wXkI4t7nuc
(Disclaimer: I’m not a lawyer so cannot personally vouch for the validity of the content.)
(That was meant to be a reply to Kereth — sry!)
Hah! Yeah, I’ve seen that one, actually. The technique above covers entirely different territory from the lecture, however. The lecture focused on getting witnesses to admit to wrong details, admitting a motive or being at the scene or so on, false testimony or misremembered details by the police, getting caught lying or giving inaccurate details, etc. It makes a convincing case for not talking to the police, but it actually took for granted that an innocent person was not going to sign a written confession, followed by a correction, indicating that they committed rape when they didn’t do so, only that they might be convicted for other reasons or that other details of the interrogation might be used as evidence against them.
Thanks for posting that. I was educationally enthralled.
Yup, just like those TV talking heads who always twist what people say to match their own narratives. I didn’t realize that interrogation techniques were being applied, but now that I’ve read this & reflected back on some of what I’ve seen, it fits.
Given that the police can lie, how do you know when you’re a suspect and thus should avoid talking to them? Presumably we wouldn’t want people never to talk to cops or try to help them with their investigations. There’s also a cost to calling in a lawyer. When is that step necessary?
Oh, you’ll know. The context of your conversation with the police will tell you a lot. If you’re down at the station, being accused of something, there’s a very good chance you’re a suspect. It’s best just not to say anything at all during this phase if you feel you’re being interrogated. You do have a right to a lawyer, but I don’t think you have the right to a free one until you’re actually arrested.
On the other hand, if you’re not being arrested, they can only detain you for a reasonable amount of time. I’m under the impression that simply stating that you don’t consent and asking whether you’re being detained or you’re free to go is sufficient to make it clear the stop isn’t voluntary. If it’s not voluntary, then the police need a reason to keep you, and it’s time for you to get a lawyer.
When you’re in for questioning, you’re there voluntarily (though the police will sure as heck do their best to make you think you aren’t). If it’s not voluntary, then you’re under arrest. So, yes, trying to leave is a good way to find out if you’re under arrest or not.
It can backfire, though. If they already have enough on you to arrest you, they may simply decide to do it. By answering their questions, you can possibly take their suspicion off of you.
The lesson here isn’t “never talk to the cops”, but “if you’re being interrogated, have a lawyer present”. If you’re innocent, but worried about being arrested, shelling out a few hundred for a lawyer and answering their questions might be worth the time and money.
Keep in mind that “a few hundred” might be half a month’s salary after taxes and transit. http://www.popehat.com/2014/01/15/the-privilege-to-shut-up/
True, but it beats jail.
“Am I being detained?”
If “no”: “I wish to leave./I am leaving.” *
If “yes”: “5th Amendment. Lawyer.”
* If they say no, but don’t let you leave, then consider yourself detained, and “yes” response applies.
If they state that you’re not detained but won’t let you go, wouldn’t this qualify as false imprisonment?
Let’s not get too far ahead. “Am I being detained,” while popular on the internet, is NOT much help when discussing custodial interrogation.
Here, it has nothing to do with whether you personally believed yourself free to go. The issue is whether any reasonable person would have felt free to leave.
What the police say may have some effect on this decision, but it’s based on the totality of the circumstances. And remember, they’re allowed to lie to you.
But we’re going to cover all of this soon, so hold your horses.
In real life, LDD, when you ask for a lawyer they don’t go get one. They just stop interrogating you.
(Or, if they’re breaking the rules, just keep on with the interrogation.)
If they don’t want people to be generally unwilling to talk to cops, then they shouldn’t pull shit like this, no?
I’d let him get through his whole story he wants me to confess to and then suggest to him that he take up writing fiction professionally.
A method that typically tells the cops they’re right? Why would that ever get popular? Who likes being told that they’re right?
Seriously though, it’s hard to imagine how anyone could delude themselves into thinking that the method described would not produce the same results on an innocent man.
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