If they’re not in custody and free to leave I just keep talking to them. They can insist on a lawyer all they want.
If they’re in custody and they want a lawyer the interview stops.
This is 101.
I once had to pull over for at a sobriety checkpoint on Labor Day weekend in a small Arkansas town. While I hadn’t been drinking and wasn’t particularly worried, and I realize these checkpoints are constitutional, I resent like hell having to stop at these things and I really wasn’t in the mood to chat things up. As I was the one driving, I told my wife I’d handle the conversation and we’d likely be on our way quickly. I was polite, there’s no reason to be an ass after all, but I provided him the briefest of answers with each question. And every single time I gave a terse answer my wife would interject.
Officer: Where are you coming from?
Odesio: From town.
Penelope: We were in the town square in Mountain View for the music festival.
Officer: Where are you headed?
Odesio: We’re going to turn in for the evening.
Penelope: We’re staying at Jack’s Resort.
Like you, I don’t consider myself to be a high risk of a negative encounter with the police. Even when I was younger they’ve always been what I consider to be professionally polite even when writing me a ticket. But my wife and I have completely different ideas of how to best speak to police when they pull you over. We had a conversation on the way back to Jack’s and I said I really didn’t appreciate her answering questions on my behalf and explained why I gave terse answers to his open ended questions. Generally speaking, she’s the type of person who will give a person more answer to a question than they want and that goes for police officers. She’s also the type of person who would happily allow a police officer to search her vehicle if they asked.
The defendant and the officer are the participants.
Why can’t they be cross-examined?
Presumably both are in the court for the trial. Especially the defendant. He/she’s there every day.
More broadly, if it is someone other than the defendant, why can’t those people be subpoenaed to appear in court so they can be cross examined?
Only if you know your rights and can assert them.
So it seems cops are very much like Vampires and have to be invited in, of course when vampires show up at the wrong house they don’t shoot flash grenades into baby cribs!
To which of my statements are you responding to?
I’m not buying into the argument, but I’m enjoying watching it. There are other videos on youtube that make the point that innocently offering what you think you saw to the police may get you landed with “making a false report”.
And the opposing counsel also can’t cross-examine a bloody knife found at the crime scene. We’re proposing that the recording be considered evidence, not testimony.
Defendant: “Yes, Your Honor, I did make that statement to the police. I did so because the officer told me that he’d give me a cookie if I did, and that I’d be sent to my room with no supper if I didn’t. Check the portion of the recording right before the part the cop showed, and you’ll see that I’m telling the truth.”
Police: “Your Honor, I did not say that. The tape shows nothing of the sort, and is therefore inadmissible as evidence.”
Isn’t this rather an absurd situation?
But in that example the portion of the tape showing the officer offering the cookie would be admissible, because it’s a “statement against interest” for the officer since he’s denying that he made the statement.
If the tape shows that, it’s admissible. But you have to determine whether it’s admissible before you admit it, don’t you? And how do you do that, without the not-yet-admitted evidence?
If so how can the police admit anything that was said during an interview at the police station? By that standard absolutely everything said during an interrogation is inadmissible.
The officer can be called and cross-examined. But he cannot testify to statements made out of court by the accused, unless they fit within an exception to the hearsay rule.
The most likely exception in an interrogation is that the accused made an admission/confession. The officer can testify to that admission or confession, and then can be cross-examined by the defence counsel. In that situation, the officer’s testimony in court is the best evidence, not the video.
And, even if the video does have an admission, that doesn’t make the entire video admissible, only potentially the admission. There would be a problem with introducing only parts of the video, that contain the admission, because you lose the context.
That’s why the officer is called to testify, because the defence can cross-examine as to context and the jury gets to hear the evidence from the officer, and can assess the officer’s credibility.
The accused is present in court, but cannot be compelled to testify or face cross-examination. If the accused says something in his favour in the video, the prosecutor cannot call the accused to testify and could not test that favourable statement by cross-examination. If the favourable parts of the video were admissible, the accused would be able to put his story into evidence, without having to meet the requirement of cross-examination, and without the jury having the opportunity to hear the accused testify and assess the accused’s credibility.
That’s correct, as I said in my first post. It is hearsay and inadmissible, unless an exception to the hearsay rule is established, such as the admission against interest.
Interrogations aren’t routinely made because they are evidence. They are recorded as a safeguard to prevent the police from abusing their power. If the video shows abuse by the officer, then the video will be admissible - not as to evidence of the statements about the event under investigation, but to show why statements made in the interrogation should not be admitted, even if incriminating.
Look, the confessions rule is on of the basic protections for an individual from police misconduct. It’s designed to ensure that a confession is only admitted if it is reliable, and to prevent improper conduct by the police to force a confession. If you’re going to reduce it to frivolous examples, thereby mocking such an important protection, I don’t really see any point in engaging.
Which illustrates the point…NEVER talk to the police.
The ONLY things admissible are things that will hurt the defendant. The defendant can blabber on and on about their innocence and the only person who will ever hear it is the cop in the room with you.
And it could be considered evidence to prove certain facts, but not the facts being asserted in the video* . The defendant has an opportunity to testify to those same facts in the trial and be subject to cross-examination if he or she chooses to.
- For example, if the defendant provided an alibi in the recorded interview, it’s possible that the video to be admitted not as evidence that the defendant was elsewhere but rather that the defendant didn’t make up the alibi on the eve of the trial
The knife can’t be cross-examined, correct. But a knife is not evidence unless witnesses are called to establish that it is evidence. Physical objects don’t become evidence unless and until they are introduced in court through witnesses, who can testify as to why the knife is relevant evidence
*The prosecutor has to call witnesses to establish where the knife was found and when, to establish its potential relevance to the events.
*The prosecutor would likely want to call an expert pathologist to testify that the knife is consistent with the wounds on the body, in the case of a killing.
*There would likely also be expert testimony that the blood on the knife matches the blood type of the deceased.
*Another expert could be called if there are fingerprints on the knife that matches that of the accused.
*If there are witnesses to the altercation, they can be called to testify that the knife is the weapon that was used.
And, again, all of those witnesses have to testify under oath, in the courtroom, in the full light of the public, and the jury gets to assess their credibility. If the chain of evidence breaks down at some point, the knife may never get admitted, or the jury may decide it’s not really proof.
In short, a bloody knife is not evidence until all those steps are met, by calling witnesses. The prosecutor can’t just put the bloody knife on the table in front of the jury box and say, “There you go, members of the jury. Proof that the accused did it.”
That’s a good example, but the accused still has to put something up in evidence to raise the alibi defence, before the video could show it wasn’t a recent fabrication.
That doesn’t necessarily have to testimony from the accused himself. If a family member or friend testifies that the accused was with them at the relevant time, then the accused may be able to get that portion of the video admitted to show it wasn’t a recent invention.
This is bad advice. The cop needs a warrant to arrest you inside your home but doesn’t need one outside it. If a cop wants to talk with you and you want to cooperate, the ideal place is for you to be inside your home while they are outside it. If you open the door to them, they will probably take that as invitation to come inside if what they want is to peak inside (and I guarantee that if testifying, they will say they were invited inside). If they want you outside so they can arrest you without a warrant, they will casually ask you to step outside so you can chat or to look at something and then they will arrest you.
So, you stay inside and let the cop stay outside. If your door has a chain, open the door and talk through the chained door. If the cop busts the door down, the broken chain is good evidence that the cop wasn’t invited in but, more likely, he won’t try to enter at all. If he asks to borrow a screwdriver. hand it through the door. If he asks you to come outside, decline politely, tell him to leave your property immediately, and close the door. If you don’t have a chained door, an open window works about as well.
Northern Piper did a good job of explaining the hearsay rule and the exception for statements against interest. He didn’t mention the “party admission” exception to hearsay, which says that an out of court statement by a party in the litigation (such as the defendant) can be admitted into evidence by the other party (i.e., the prosecution) but not by the defendant himself. The court doesn’t want the defendant to enter his self-serving, unsworn, out-of-court statements as evidence. The defendant can, if he chooses, say those same things in court, under oath, and subject to cross examination.
Parts of the tape that are admissible under exceptions to the hearsay rule can be used as evidence. The only parts that are admissible, as a practical reality, are the parts that will hurt the defendant.
pkbites is absolutely right. He’s also not mentioning that the police don’t bother to remind people that they are free to leave. They do a good job of making people feel not free to leave. Like, having three cops between the suspect and the closed door to the interview room buried deep inside the station house. The suspect may be free to leave if he asks or even if he just gets up and goes but the police are pretty good at not making them feel free to leave.
Maybe we could have a constitutional test that, for example, if a suspect asks for food, a drink, to use the bathroom, or why the police are keeping him there (any of which he could take care of himself if he truly felt free to leave), the police must treat it as a custodial interrogation or remind the suspect without coercion that he is, in fact, free to leave and go do those things or anything else.
The defendant can’t be cross-examined because he has a fifth amendment right to remain silent.
That is a good point, which I had not thought of. And I am far from expert. The situation I was thinking about is if someone opens the door wide, giving the cop a clear view of the bong on the table (or other illegal stuff).