A little help with the hearsay rule please.

[Yogurt]

@YogSosoth

I don’t see how telling them you didn’t do anything can hurt. So what if they dont’ tell you anything? Saying you didn’t do it cannot be used against you unless you did do it. Or maybe you’re afraid they’re going to tape your conservation and then edit the words together to make a confession? That’s insane

You’re giving the prosecution the ability to then use that statement for whatever purposes they want, while at the same time you will be unable to use it. Worst case scenario you are innocent but found guilty, the prosecution will be more than happy to stand up and say you have shown no remorse and still refuse to accept any culpability, and therefore should be sentenced more harshly.

Even if you are innocent, as was stated upthread, the police are not your friends. They do not have your best interests at heart, and cooperation will not save you. Lawyer up early.

[constantine]

@Nars_Glinley

Thanks Bricker and Bearflag70. I see how the rule applies or doesn’t apply now. **What I don’t understand is why the rule exists. ** What underlying legal principle is it that says that the police should withhold potentially exculpatory evidence from a jury? Why does the “for/against” nature of the evidence determine if it’s hearsay?

Here’s the quick and dirty answer to why the rule exists: we believe in cross-examination. (I’m going to get to the operation of the rule and–just as important–the exceptions to the rule in a moment so please bear with me)

Just think about your own life experience and how many times person A told you something was true and it turns out that his whole basis for saying it is that this other guy , Person B, heard it from this other guy, Person C, and then he told Person A.

And so then you go talk to Person C and it turns out, no no no, that’s not what Person C said at all, somebody must have misunderstood, OR Person C was obviously lying, or Person C was not obviously lying, but just seems kind of dimwitted or confused.

So we have a basic rule, NO HEARSAY. If you want to get into what Person C has to say about something, then bring him into court, and let the jury take a look at him to judge his demeanor, and let both sides get to ask him questions to probe what he is saying.

Now there are a whole bunch of exceptions to this rule, each with its own rationale. The particular exception in operation in your hypothetical is the “party opponent” exception. Basically, this states that the hearsay rule does not apply when we are talking about statements made by a party to the legal proceeding. This is because a party DOES have the opportunity to cross examine the witness: he can take the stand.

Take two cases. Case 1: the out of court statement is made by the afforementioned person C. Case 2: the out of court statement is made by a party. In Case 1, the party objects and says, hey, you can’t introduce this statement by Person C, because I don’t have the opportunity to cross examine him. In case 2, the party objects and says, hey you can’t introduce a statement that I made, because I don’t have the opportunity to cross examine myself. Oops, wait a minute, yes you DO have the opportunity to cross examine yourself because you can take the stand and give your version of the story.

Now, why can’t you introduce statements that you made before? Why does the hearsay rule prevent you from doing that. Again, because if you want to say something, you can take the witness stand and say it, and then subject yourself to cross examination by the other side.

[Nars_Glinley]

So if someone lies (or misremembers) on the witness stand about something you said, your only recourse is to take the stand yourself and thereby exposing yourself to cross-examination?

[Fotheringay-Phipps]

@Nars_Glinley

In this popular web video of Don’t talk to the police, the first reason that the professor gives (around 9:00) is “It can’t help.”

I don’t understand this. ISTM that it can help a lot.

It’s not going to help you in court, but it can help you by convincing the cops that you’re innocent and that they should focus their suspicions elsewhere.

Because if they decide that you’re the likely suspect - and refusing to talk to them will undoubtedly increase the likelihood of this - then they are going to interpret all sorts of evidence in accordance with this notion. And you are going to have to dig yourself out later. Far better to have them on your side at the outset.

There are a lot of examples of this phenomenon occurring, e.g. the Jon Benet Ramsey case, to pick just one.

I realize the risks involved in talking. But I don’t see them as being that great by comparison, if you know in fact that you’re innocent and that anything you say will naturally be consistent with this. So I think the better strategy would be to talk.

I wonder if the “don’t talk to the cops” approach is pushed by lawyers biased by self-interest.

[Nars_Glinley]

@Fotheringay-Phipps

I wonder if the “don’t talk to the cops” approach is pushed by lawyers biased by self-interest.

I have a very good friend who is a District Court Judge (the trial level in Oklahoma) and I’ve talked to him extensively about this. He agrees with the good professor. Lawyer up and never consent to a search.

[Fotheringay-Phipps]

OK, maybe it’s not. Was he specifically talking about people who are innocent?

[Nars_Glinley]

Since we were talking about what I should do, I assume that we were both talking about someone that’s innocent.

I was also able to get an attorney recommendation out of him without specifically asking who I should use because I think he’d be ethically barred from referring someone. I asked him who would represent his wife if she were arrested. That was good enough for me although his wife gave me strange looks.

[Fotheringay-Phipps]

OK.

But in any event, it’s possible that this judge, due to the nature of his job, has a perspective that focuses on what happens when you’re already in court. And I agree that once you’re already in court and on trial, you are worse off for having spoken to the cops.

But my argument here has been that (if you’re innocent) you are less likely to end up in court to begin with if you cooperate with the cops and explain things from your perspective. And I don’t know if that’s something that this judge has any particular insight into.

Perhaps we need the perspective of someone in law enforcement.

[doreen]

@Fotheringay-Phipps

Because if they decide that you’re the likely suspect - and refusing to talk to them will undoubtedly increase the likelihood of this - then they are going to interpret all sorts of evidence in accordance with this notion. And you are going to have to dig yourself out later. Far better to have them on your side at the outset.

There are a lot of examples of this phenomenon occurring, e.g. the Jon Benet Ramsey case, to pick just one.

I think “Don’t talk to the cops” is meant for when you are already a suspect ( although perhaps not under arrest) and not for when you are a witness or a victim

[Fotheringay-Phipps]

@doreen

I think “Don’t talk to the cops” is meant for when you are already a suspect ( although perhaps not under arrest) and not for when you are a witness or a victim

What I said holds. Unless you are already the prime suspect, which is something else.

For example, suppose a guy’s wife is killed by some intruder. He calls 911 and the cops come down.

He is automatically a suspect at this point. That doesn’t mean that the cops think he is lying about the intruder and that he did it, but they would certainly have that as a possibility until they check if his story is consistent.

I would think that a guy in this situation who clams up and refuses to talk to them without a lawyer is going to raise their suspicions considerably, such that they will be more likely to look for and find minor inconsistencies with his story that point to the whole incident being a cover for him being the real murderer. Conversely if he plays the aggrieved and innocent husband that he is they are more likely to focus on the intruder angle.

Of course, if they do get it into their heads that he is the murderer, then he’s worse off for having spoken to them, because there’s more material for the prosecution to work with. But I think he’s far more likely to avoid the whole thing to begin with by being cooperative and seeming innocent.

[ivn1188]

No. Plenty of innocent people go to jail. While the cops might be suspicious because you lawyered up, the cops don’t do the charging; the prosecutor does. Lawyering up is not probable cause for anything, and most of the time, the lawyer you call will simply vet the questions and make sure nothing gets twisted up, and make sure that the cops don’t browbeat a bad admission out of someone.

And if it was a family member, I would be vastly more reluctuant to talk to the cops. cops have their lore, and one of the big ones is that it’s almost always another family member who did it. If you don’t cry enough, or you cry too much, or whatever else, they will think it’s suspicious.

There is zero benefit in talking to the cops. The only thing you can give them, without a lawyer, is evidence against yourself. They will come in and lie to you, try and be your best buddy, hold you for hours, terrify you, or whatever else it takes to elicit incriminating info, or what they think is incriminating info.

Now, if you’re clearly not a suspect (Did you see Pete drinking beer before he went to the parking lot?), you’re not going to be hurt by talking. But if they are questioning you about anything you did, lawyer up.

Watch some of these real crime documentaries sometime – these people talk to the cops, tell them stupid shit, raise suspicions, and then get busted. A lot of the time, they weren’t a suspect before the interrogation. Some of the people who got convicted might have been less culpable than the jury found them to be. But I have never seen a documentary where being the helpful guy who “clearly didn’t do it” helped someone.

[Nars_Glinley]

Fotheringay-Phipps, sometime when you have an hour to kill, you should watch the video in the OP. At the end of the professor’s talk (about 30 minutes), he has a police investigator give a “rebuttal”. You can see it here. Basically, the cop agrees with the professor.