This is a purely educational website. Nothing here is legal advice or creates or implies an attorney-client relationship. If you have a specific legal issue, PLEASE talk to a lawyer who practices where you live—laws vary from place to place, and how they're applied varies from courthouse to courthouse. Your local county bar association can probably refer someone.
By using this site, you agree that you are awesome. Use of this site also constitutes acceptance of its
Terms of Service and Privacy Policies, which are known to medical science as a cure for insomnia.
It's best to keep all discussions in the comments. But if you really need to reach Nathan privately, go ahead and email him at n.e.burney@gmail.com. He won't mind. Here's his
Mastodon, his
Twitter, and his
Instagram, as well.
THE ILLUSTRATED GUIDE TO LAW and the PEEKING JUSTICE logo are pretty damn cool trademarks and should probably be registered one of these days.
© Nathaniel Burney. All rights reserved, though they really open up once you get to know them.
I have to disagree here. The topic makes it abundantly clear that this is not a traffic stop, and the officer was specifically looking for him. Who in their right mind would believe that this is not a coercive stop? How (within reason) could the officer start talking about bank video and the driver then gets to continue driving? If I had my wits (I might not), the second thing I’d wanna do is call a lawyer.
And don’t tell me the average person is assumed to be too stupid to figure that out. ;-)
…which is why Pi there says she -thinks- she can use it and will probably have to argue it in court.
Here’s how Pi might be thinking it’ll play out:
It only became apparent that it wasn’t a mere traffic stop when Kate told Ledway he was on video. Pi will argue that until that very moment, any reasonable person would have thought it was a regular stop.
Defense counsel might counter that Kate’s statement created a custodial situation, because a reasonable person would have thought he was about to be arrested.
Pi and Defense counsel would then have a long and philosophically intriguing debate about whether interrogation can create the custody in which the same interrogation is taking place.
After the judge has had enough of this, Pi would argue that nobody would have thought they were really for sure no doubt about it getting arrested. Mere presence outside a bank doesn’t mean complicity with a crime that happened to take place there, and Kate didn’t say anything about him doing anything there, just being there.
Defense counsel could counter that even so, a reasonable person would think he was under suspicion of a crime, because come on, he just got pulled over by a cop for it.
Kate would reply that this is no different from a stop-and-frisk situation. It’s still only suspicion, and as a matter of law a reasonable person would think it would only be a temporary investigation (unless it escalated). So as a matter of law it wouldn’t be custody until something more happened. Like the cavalry arriving.
Then the judge would agree with her, she’d get to make a smug little smile at the defense counsel, and she’d have a fun story to tell over beers that evening.
Yeah, I bet that’s how she sees it.
Sorry, but no matter what the law says, I’d already be needing a change of clothes at that point, no matter how well Pi argues later.
No, it’s clearly far more than suspicion, because… [I’ll leave this for the defense to say…]
No! Keep going! This is where it gets good.
Really? Ok, here goes (off the cuff; could probably improve with some time to polish):
There are 5 direct clues in the presentation which indicate that things are not well:
1. The prop, which appears to have NOTHING to do with a normal traffic stop.
2. The confrontational initial question which officers use to get a confession. The question is clearly rhetorical or a trick question; there’s nothing you could say to fix whatever is about to come.
3. The word “bank”.
4. The word “security”.
5. The word “video”.
I considered the possibility that the oil wells and flat landscape might be another clue (implied distance from bank), but after considering the prior storylines, I think Fremont is just a midwest state.
From thus, you can only infer that Officer Kate was specifically looking for Mr Ledway, and that this is more than a traffic stop, and in fact isn’t even “just” an APB.
If this were actually Joe Innocent, who actually dropped off a friend at another bank to make a deposit, how can he, who coincidentally looks somewhat like Mr Ledway and whose license plates were switched for him last night without his knowledge, come to any conclusion other than “oh fuck” from this farce, which took a surreal twist when the thumbdrive was presented.
So it sounds like this is the type of thing where a judge might actually decide something different?
Sure. A judge can ALWAYS decide differently. And there are often good arguments to be made either way.
I’m trying to include not-so-clear-cut examples every now and then specifically to get people thinking and arguing. Real-life cases aren’t always cut-and-dried.
Though I’d be lying if I said most judges wouldn’t side with Pi here. In my experience, most would respond to the defense like the judge in My Cousin Vinny: “That is a lucid, intelligent, well thought-out objection. Nevertheless. Motion denied.”
“As a matter of law” is a really magical phrase, isn’t it?
Right up there with “because I said so.”
Wow, the State really IS like a mother!
Sorry if this has already been explained elsewhere. However, why is the standard what a “reasonable person” would believe, rather than what the actual individual in question actually believed at the time? I know that no one can read minds. However, if I understood the section on the history of self-incrimination, before Miranda the standard was based on the state of mind of the individual suspect on a case-by-case basis. So what was the reasoning for changing the standard? Does the case of “Miranda V Arizona” Actually say that the standard shall henceforth be what a “reasonable person” would have believed at all?
The quick-and-dirty answer is the courts couldn’t figure out how to decide voluntariness on a case-by-case basis, so they came up with a “bright-line” rule that was easy for police to remember and for courts to apply. Bright-line rules and unique individual circumstances don’t mix. So you get an “objective” test rather than a “subjective” one. An “objective” test in the law asks what a “reasonable person” would have done/thought in that situation. A “subjective” test asks what this person did think/do. Voluntariness remains a subjective test. Miranda is objective.
I would have to object to that; there’s no objective standard for a “reasonable person” beyond the judgement of the individual judge or juror. It may be a lot easier to judge than trying to get into the head of the suspect, but it’s still subjective – isn’t the whole point to avoid writing into law what is and isn’t reasonable in each and every situation? (which would make it objective)
You should really be answering that with a link by now.
For some reason my browser cannot post links to other pages of The Illustrated Guide to Law in the comments section of The Illustrated Guide itself.
You can always cut-and-paste links, but I’m the only one who gets to insert hyperlinks. Bwa ha ha ha ha!!!
I prefer to answer with an answer, myself.
But here’s a link if you like.
She can try to argue that interrogation can’t create a custodial situation all she wants, but I don’t see why she would expect to convince anyone, it seems self-evident to me.
Regarding the nature of this specific interrogation, it seems pretty obvious too; it was highly confrontational and accusatory, clearly not simply gathering facts from witnesses at or around the scene of a crime. Nobody is going to think they’re going to be let go after that.
Obviously I can’t speak for a judge, but if you asked a jury about it I don’t see how she could expect to win.
Here’s a question. What happens if Ledway simply denies making that statement? Did the cop record it? Why wouldn’t this turn into a he-said-she-said situation? Are cops’ testimonies automatically given more legal weight?
“Legal” weight? No. A police officer’s testimony is just as valid, or invalid, as anyone else’s. If it’s a cop’s word against someone else’s, the jury has to decide who is more believable.
Besides, the radio was probably set to transmit-only, or the officer had a recorder in his pocket.
Most statements are oral, not written. So they do come down to the police officer’s testimony about what was said. Most officers will make a note of the statement in a memo book or official report, so they don’t forget when the time comes to testify.
Police testimony doesn’t have any more or less legal weight than anyone else’s. But that doesn’t mean judges and jurors aren’t more likely to believe them in reality. (Though there are judges and jurors who are less likely to believe them, as well.)
He-said-she-said cases make up a very large number of criminal cases, believe it or not. Witness credibility is the biggest factor there.
This article from a day or two ago just showed up on /r/law, and seems rather timely!
https://www.thenewspaper.com/news/44/4467.asp
I don’t know how the justices can refuse to speculate on what will happen if he had driven away, given that the reasonable man will be speculating on just that. It seems like a short-sighted decision; are they really going to backup someone who did drive away from a stop like that?
If it’s generally safe to walk away, it should therefore be safe to drive away; the lack of lights implies it’s not a mandatory stop. Nevertheless, only a fool doesn’t think about Rodney King, “suicide by cop”, “your taillight is out” and related things when considering whether to annoy an officer.
Here’s my thought about it: if you have to think about whether it’s even legal to ignore the officer, you already have a problem; the coercion has already started before the officer has even said a word.