Posted on 05/11/2008 9:16:18 AM PDT by B4Ranch
[Originally published in The Blue Press, from Dillon Precision]
Just Say Nothing by Dave Kopel
What if you've just been arrested for something which shouldn't be a crime? For instance, if a burglar breaks into your home, attacks your children and you shoot him. Should you talk to the police in detail about what happened? In a word, "No." Shut up, call the best lawyer you can find, and then continue to shut up. If you talk to the police, you will only make things worse for yourself.
Sociologist Richard Leo has written several articles which detail the deliberately deceptive techniques which police use to extract a confession.
First of all, since 1986 the Unites States Supreme Court has required that all persons under arrest be given the Miranda warnings, so that they will know that they have a right to remain silent, and the right to a lawyer. So how do police convince a suspect to talk, even after the Miranda warning?
Professor Leo explains that "police routinely deliver Miranda warnings in a perfunctory tone of voice and ritualistic behavioral manner, effectively conveying that these warnings are little more than a bureaucratic triviality." Of course, the Miranda warnings are not trivial; your liberty may hinge on heeding those warnings.
No matter how strong the other evidence against you, a confession will make things much worse. A confession often makes the major difference in the district attorney's willingness to prosecute the case, and his willingness to accept a plea bargain. If your confession gets before a jury, your prospects of acquittal are virtually nil.
If you are foolish enough to reject the Miranda warnings, simply put, the police interrogators will attempt to deceive you into confessing. As a result of increased judicial supervision of the police, deception, rather than coercion ("the third degree") has become the norm for interrogation.
First of all, you will be kept in a physical environment designed to make you want to waive your rights and talk. You will most likely be kept in isolation, in a small, soundproof area. By isolating you, the interrogator attempts to instill feelings of anxiety, restlessness and self-doubt on your part. Left alone for long periods, you may think you are being ignored, and will therefore be happy to see the interrogator return.
Ideally, from the interrogator's viewpoint, you will begin to develop the "Stockholm syndrome," in which persons held captive under total control begin to identify and empathize with their captors. This can occur after as few as ten minutes of isolation in captivity.
While increasing your dependence, the interrogator works to build your trust by pretending that he cares about you, that he wants to hear your story, and that he understands how difficult it may be for you to talk. The interrogator works to become your only source of social reinforcement.
There is no law against outright lies or other deceptions on the part of police during an interrogation. Almost certainly, you will be told that the prosecutor and the judge will be more lenient if you confess. This is a complete lie. The district attorney will be more lenient if you don't confess and he can't make a strong case against you, and therefore has to settle for a plea bargain. Nothing the police promise in the interrogation room is binding on the police, much less on the district attorney.
There are five "techniques of neutralization" which the interrogator may use in order to make you feel that the crime really wasn't so bad, and that it is therefore all right for you to confess. Of course the interrogator's pretense that he doesn't think the crime was serious will last only as long as necessary to obtain the confession.
The first technique is called "denial of responsibility," allowing the subject to blame someone else for the offense. For example, "it was really the burglar's fault for breaking in; he's the one to blame for getting shot." (That's true, but it's you, after all, that the police are interrogating.)
Another technique is "denial of injury." For example, "The burglar wasn't really hurt; he walked out of the hospital two hours ago." Maybe true, maybe not. In truth, the burglar could be in intensive care and the interrogator could be laying the groundwork for a murder case against you.
In the "denial of the victim" technique, the interrogator will suggest that the victim deserved what he got.
"Condemnation of the condemners" is always popular. For instance, "the real problem is all those anti-gun nuts who let criminals run loose, but don't want guys like you to defend themselves." True enough, but when the policeman saying this is holding you prisoner, take his sincere expression with a large grain of salt.
Finally, there's the "appeal to higher loyalties" such as "What you did is a common sense thing. Regardless of some legal technicality, the most important thing is for you to protect your family. Your family comes first, right?" True again, but the man saying this wants you to confess to violating the legal technicality, so you can be prosecuted for it.
A close cousin to the denial strategies are the "normalizing" techniques, in which the interrogator claims to understand that the crime was not typical behavior for the subject; "I can see that you're not a violent person. You're not a criminal. You're a tax-paying, home-owning, regular kind of guy. What happened tonight was really unusual for you, wasn't it?"
You have nothing to gain, and everything to lose by talking. You are not going to outsmart the interrogator. Even if you don't end up producing a full confession, you may reveal details which will help build a case against you.
Most violent criminals are too stupid to read, and too lazy to pursue a time-consuming, high-precision hobby like handloading. So I'm not worried that a violent criminal will read this column, and avoid confessing to a serious crime. Anyone who does commit a violent crime should confess, since they've done something that is wrong. Too often in America, good citizens are arrested for victimless "crimes," including unjustifiable (and unconstitutional) gun regulations. The routine use of deception in order to trick good citizens into confessions is something that deserves more scrutiny than it has thus far received.
In the long run, routine deception by the police tears at our social fabric, and undermines the law enforcement system. The more police lie, the more skeptical juries are going to be, even when police are telling the truth.
Moreover, there are about 6,000 false confessions for felonies every year in the United States. (Huff et al., "Guilty Until Proven Innocent," Crime & Delinquency, vol. 32, pages 518-44, 1986). False confessions are one of the major reasons for the conviction of innocent persons.
One funny thing. After I got my CC permit, when these small town cops pulled me over, I'd hand over my permit, they'd ask me if I was carrying, I'd say yes, and they'd relax. Concealed carry people are a lot safer to be around than most people, so cops know they're not at risk. Despite the aggravation I feel when getting pulled over, I wouldn't want to do it for a living.
When Will The Police Read Me My Miranda Rights?
The police must advise suspects of their “Miranda Rights” - their right to remain silent, their right to an attorney, and the right to an appointed attorney if they are unable to afford counsel - prior to conducting a custodial interrogation. If a suspect is not in police custody (i.e., “under arrest”), the police do not have to warn him of his rights.
The police are very aware of when they have to read suspects their “Miranda Rights.” The police will frequently question a suspect, specifically telling the suspect, “You are not under arrest, and are free to go. However, we would like you to answer some questions.” After the suspect voluntarily answers questions, and sometimes if he refuses, he is arrested. The questioning, being voluntary and non-custodial, is usually admissible. After arrest, the police may have no interest in further questioning, and thus may not ever read the suspect his “Miranda Rights.”
If The Police Don’t Read Me My Rights, Can They Still Use My Statement?
Sometimes, a suspect will make voluntary statements after he is arrested. The police do not have to warn suspects not to make voluntary statements, as long as they do not deliberately try to elicit those statements through statements or conduct. Sometimes, suspects will express their surprise at being caught by the police, with statements to the effect of, “You got me.” At other times, suspects will try to justify their actions to the police after they are arrested, with statements such as, “I don’t know why I did it,” or, “The drugs weren’t mine - I was carrying them for a friend.” Those statements, if made spontaneously by a suspect, will almost always be admissible in court. Additionally, if a statement leads to the discovery of other evidence, even if the statement itself was taken in violation of the Miranda ruling the police may be able to use that evidence.
Can My Silence Be Used Against Me In Court?
When a person chooses to remain silent after receiving his Miranda warnings, that silence cannot be used against him in court. However, if a person has not received his Miranda warnings, and remains silent, it is possible for that “pre-Miranda” silence to be used against him. For example, if a person is arrested for murder, or is told that he is a suspect, a typical innocent person will express disbelief and may even try to present an alibi. It would be unusual for a person to simply remain silent, after being informed that he is being wrongfully charged with murder - even people who know their right to remain silent will often express surprise. A prosecutor may subsequently argue that the “pre-Miranda” silence resulted from the fact that the defendant was not surprised that the police “figured it out.”
How Do I Protect Myself From Having My “Pre-Miranda” Silence Used Against Me?
If you are under investigation for a criminal offense, you can prevent “pre-Miranda” silence from becoming an issue by stating, “My attorney told me never to talk to the police without talking to him first. Do I have to answer your questions?” Once informed that you have the right to remain silent, no negative inference can be drawn from your exercise of that right. There is nothing wrong with making your attorney responsible for your choice to remain silent — it looks a lot more suspicious if you simply refuse to answer questions than if you present the explanation that your attorney gave you standing advice not to answer questions.
If I Remain Silent Or Ask For A Lawyer, Won’t The Police Think I Am Guilty?
The police tend to draw a negative inference from the fact that suspects refuse to answer questions, or where suspects hire attorneys (”lawyer up”) before they are charged with crimes. However, there are many cases where the only evidence against a defendant is his confession, or where an innocent person finds that the police have misinterpreted his statements. In one notable case, a police officer was a criminal suspect — he made a taped statement, expressing his innocence. Subsequently, he was shocked to hear his tape recorded “confession” used against him in court. As it turned out, his statement was recorded on a used tape, which contained a confession from a different case. Part of the old recording, immediately after the end of the police officer’s statement, was presented as the defendant’s “confession.” If that can happen to a police officer, obviously it can happen to you.
If I Choose To Remain Silent, Or Request An Attorney, But Later Decided To Answer Questions, Can They Use My Statement?
If the police do try to question you after your arrest, they are supposed to cease interrogation if you exercise your right to remain silent or request an attorney. It should be noted that the request for an attorney is “more powerful” than a request to remain silent. Courts tend to view police claims that a suspect changed his mind about having an attorney with much more suspicion than claims that the suspect changed his mind about remaining silent.
The police use numerous techniques to get suspects to change their minds about remaining silent. One very simple technique is to use silence against the suspect — the officer explains, “You don’t have to make a statement, but I still have to write up this report, describing what everybody says that you did.” The officer, in front of the suspect, then starts to type out his report, saying nothing to the suspect. It is common for the suspect to break the silence, and to choose to make a statement.
http://www.expertlaw.com/library/criminal/miranda_rights.html
If it is a Terry stop, won’t the cop immediately ask you to step out of the vehicle?
A lot would depend upon the nature of the thread and the effect of the bullet. The legitimate purpose of shooting someone in self-defense is to neutralize the threat. If that happens to kill the person, fine, but the purpose is supposed to be to stop the attacker.
In many scenarios, I would not expect that someone who had just shot someone else would be inclined to give first aid, but I would expect in other scenarios (e.g. if one knows that the attacker is generally a good person but has 'snapped' for some reason) one might be forced to use deadly force to stop the attacker, and yet not particularly want the attacker dead. Killing the attacker would be preferable to not stopping the attack, but if the attack can be stopped with the attacker surviving that may be preferable still.
IMHO, there should be a law stating that all actions by police confronting a subject are presumed to be coercive, and any statements made or permissions given in response to such actions are presumed to be involuntary. Such presumptions could be rebutted, but police often exploit the implied threat that they could exercise their power to make people miserable should those people not do as the police want.
I am having a hard time putting together a situation where I am in fear for my life yet I can’t find another solution except deadly force. If you think you are going to be involved in such a thing I suggest that you get some tear gas or a Taser. I would stay away from using deadly force unless you are prepared to defend yourself before a jury.
This is actually an ACLU video. I am second to none in my contempt and outrage for the ACLU. But frankly, I think this video is very instructive.
Flame away if you must. But I still think it's worth seeing, and thinking about next time you are pulled over.
Depends on their attitude and how much they know about the law. I usually get it defined early on in the conversation. I would not recommend it unless you have LOTS of experience both talking and in the law but if they tell you it is a Miranda stop ask them if you still have to provide information that might incriminate you. Locks many of them up right away - can be good fun. make sure you have time to deal with it though if they decide to haul you in. Interestingly enough I do not and have not had the problem of definition with the NHP. The young punks from the CHP are a real pain.
Sorry that sarcasm was lost on ya..........:o)
I know better.
Stay safe !
I am nowhere close to being educated in legal matters. I have heard the term Terry stop before but am not sure what it means. I am not intimidated easily and for some reason they don’t try that nonsense with me.
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Sorry that sarcasm was lost on ya..........:o)
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Tis OK! Been clueless for years.
Young guns take heed.
Me? Not a peep until Lonnie Deland or Mitch Vilos are here... that kind of backup isn't cheap, but neither are hospital bills, or God forbid, something worse. Live is too precious to even consider cost when the time is at hand.
Yep......... That is why it’s always a last resort. One can expect to be arrested and arraigned and if clear cut no doubt bail set until no bill by the grand jury. Any mistake in a blue state or a blue city and yer toast in my experience. 2 shootings I was personally involved in as a sheriff deputy in early 90’s were hell on all involved. I responded to many many more and wish such on no good guy or gal. Bad deal all around. If one can run, hide, stop and let threat egress then do so unless loved ones present or you have no cover and are under fire. Then just make sure there’s one side to the story ........your attorney’s
But as your also well aware........every situation is different and we can’t arm chair each and every one of em before or afterwards. Just try and evaluate the what ifs and what possible and normal in such situations.
Stay safe .......:o)
LOL.......All good info though !!
Stay safe !
I am only 20 but since Squantos is 180 it gives us 200 years if experience!
That’s it I’m mailing back the pig !........:o)
LOL!
Does it need fresh batteries?
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