The usual case of " it may harm your defence if you do not mention when questioned something "is an alibi produced months or years down the track, if your abili is being with John Smith at the time of the crime the police will want to confirm this before you have a chance a to get your stories straight.
Sounds like a crock of horseshit to me. It’s essentially pressuring people to talk without counsel. England’s quaint and all but I’m glad I don’t live in a medieval monarchy.
Good lord, some just do not see it.
It simply means that post facto defenses are harmed by your silence.
You don’t have to tell them there was another person who was really the shooter.
Just don’t expect the Court to believe that you somehow feared for your case when you didn’t mention him to the police when you had the chance.
Let’s try this:
“If you are going to make up something, now is the time to start”. Now do you see it?
Nah, you’re the one that’s missing the point. The point is whether you’ve had a chance to speak to counsel (something that usually takes some time to arrange and thus doesn’t happen immediately upon arrest or right after), and have counsel present at the time of questioning. The whole point of Miranda rights in the U.S. is to make sure people understand this right. If the British version is implying that you might in any way benefit from speaking to police before speaking to counsel, or that not doing so could, even potentially, in any way harm you, then they are putting pressure on people to speak before getting counsel. And that, as one might say in your quaint British dialect, is bollocks. There’s no other way to interpret it.
There’s virtually no statement, no matter how innocuous, which cannot be turned against you in court–even when all parties have the best of intentions (which is rarely the case).
The whole reason we have lawyers is because they are an interface between citizens and the legal system. Most individuals aren’t capable of interacting with the legal system without inadvertently incriminating themselves. Lawyers act as translators.
America certainly has some problems with its legal system (plea bargains come to mind), but the idea that its acceptable to punish someone if they didn’t speak through their lawyer is barbaric.
Guilty until proven innocent. Got it.
It’s interesting to me to see how Americans seem to be taking it as compared to the rest of the world (I assume).
It seems to me to be common sense that when someone is first arrested for a crime he didn’t commit due to some obvious fact, that he would say so to the police when they were taking his statement. It doesn’t take a lawyer to come up with the defence “It wasn’t me, it was this other guy with one arm”.
If when all’s said and done, and you’re before the judge, and THEN you say “It wasn’t me, it was this other guy with one arm, but I didn’t want to tell the cop because I didn’t have my lawyer with me”, then it seems perfectly reasonable for the judge to draw an adverse inference from that. Hell, I wouldn’t believe you either.
From a societal perspective, it makes sense to exonerate people as soon as possible, rather than spend court resources on meritless prosecutions. If the police had seen this other one armed guy on the street, and you had told the police about the one armed guy being the actual assailant, then they could have arrested that guy too.
I can’t help but feel that this is a symptom of a society that trusts in the system, but not the people running the system. So, instead of trusting a judge to draw appropriate adverse inferences, or for the police to prosecute based on evidence and statements provided, Americans somehow always believe that the prosecutor is out to “get them”, and the system is the only thing holding the police, the judge, and the prosecutor back, that there should not be any discretion in the system without “your guy” there to back you up and defend you against “the other guy”.
“when questioned”
“when questioned”
“when questioned”
“when questioned”
Perhaps you missed that bit. Honestly I don’t see what you are having trouble with and I can’t see where the the arrest warning wording in any way exerts the pressure you suggest.
Heck, the very first thing is says is that you don’t have to say anything.
Official questioning is a sit-down affair with free legal representation and the police absolutely have to inform you of the option of this legal representation before this occurs. And in the UK, independent, free legal representation is available 24hrs at the station.
This is all clearly laid out as shown here.
So I don’t see your problem. And as regards your other comment…
…is ludicrous, If we were medieval then surely we’d be given to high levels of draconian prison sentence for minor offences, summary law enforcement killings and executions.
You’re the second person in this thread to say this. It’s such a complete nonsense at worst and a gross - even ludicrous - hysterical overstatement at best that it really makes me wonder how much of this thread is about rational discussion, and how much is “the UK does it different to how the US does it, so it must be wrong! *USA, USA, USA fuck yeah! *”.
The most obvious facts can be misremembered under the stress of being arrested. And any minor discrepancy in your story–such as saying that it was 5:00 when you were at the grocery store instead of 4:30–will be used against you.
No one is saying it has to come to court. Just that you won’t say anything without your lawyer present. If it’s in society’s interest to protect the innocent, then they should not be encouraged (by threat of their silence harming them in court) to speak without counsel.
An oldie but goodie: Don’t Talk to Police. It’s a bit long, but every American should watch it. And everyone else wondering why Americans consider their Fifth Amendment rights to be sacrosanct.
Wonder how many people the cops have killed this week?
I assume its because the relationship between the police and the public in America is now extremely adversarial, the defacto assumption is that American cops cannot be trusted and so the public have to act accordingly. Americans assume that anything they tell a cop will be used to convict them, they don’t allow that maybe, just maybe, something they tell a cop could be used to exonerate them.
The English and Wales experiment of diluting the “right to silence” in 1994 did come as a surprise to other Commonwealth jurisdictions. If there is any strong criticism of this by the Law Society of England and Wales, I’ve never come across it. It seems to work and isn’t a significant erosion of an arrested person’s rights.
Nevertheless in Canada, India, Australia and New Zealand the absolute right to silence (which stems from British common law) remains in place.
Incidentally, many Americans robustly refer to Miranda v Arizona as if that is a magical touchstone of US legal purity. Miranda was decided by the US Supreme Court in 1966 - very recently.
And the fact it had to be decided at all is clear evidence that arrested persons rights were not previously protected in the US in all states.
I was replying specifically to this line:
There is no English reading of this line that doesn’t assume the guilt of the target. “make up” Do you see it? It assumes that anyone arrested must “make up” a story, and that it’s in the interests of the police to get the person to incriminate himself as early as possible, because if you give him a bit more time he might come up with something convincing.
It ignores the virtual certainty that even a completely innocent person will get their own story wrong, even in the most trivial and mundane details. These details will come out in court and harm the person’s credibility. If there is a huge amount of other ameliorating evidence, maybe these details won’t matter. But if the balance of evidence is right on the edge, then our innocent person looks like a liar and the jury may lose sympathy.
The assumption is, of course, of a subsequent criminal prosecution.
It means the later examination in court goes a little differently:
“Why didn’t you mention this when invited to at your arrest?”
So the jury gets to form a view on why the defendant chose to say nothing.
Before people go on embarrassing themselve they should probably read this page:
http://thejusticegap.com/2011/12/extreme-caution/
It just doesn’t work the way people are assuming. The entitlement to legal advice and the potential negative effects of not mentioning something when questioned are not incompatible. It is not the case that one must mention something before seeing a lawyer or it will harm your defence.
The Miranda case only decided whether police could use a person’s statements against him if said person had not been informed of his rights.
We already had the right to remain silent. That was true from the founding of the country. However, an individual might not be aware of this right, and Miranda obligated the police to inform people of their rights if they were to use these statements in court later.
The definition of the word “if” isn’t your strong point, is it?
And furthermore, as I suspect you should know, coppers don’t decide on guilt or innocence. So what a copper believes at the time of arrest, and whatever colloquial remarks they might make that reflect their view (as put into their mouth by usedtobe) don’t mean that the person is guilty until proven innocent. That’s for a jury to decide.
Three situations to be mindful of:
Invitet for questioning - an interview at the police station
Arrested but not charged - entitlement to free legal advise
Charged with a criminal offence - defence solicitor present.
I was going to jump on you for this one, but on second reading you’ve sort of got a point.
However, it doesn’t matter. Much.
When you’re arrested, anything you say at that point doesn’t carry a lot of weight. Unless you’re shouting ‘Yes I did it, I’m glad the bastard is dead’, then anything you say (that the police manage to write down) only goes so far.
What really happens is that you’re put into the back of a car/van and taken to the police station. When you’re there, the custody officer will read you a more complete set of rights (yes, including your right to a lawyer), and will provide any written codes of practice, interpretations etc that you request. Then, at some point, you are interviewed - complete with voice recordings and legal representation (unless you waive that right). If you’ve said anything ‘interesting’ at the point of arrest then they’ll cross-examine you on what you said. That is the point where not speaking up may harm your defence. But of course (unless you’re an idiot and have foregone a lawyer), then your legal representative will by then have explained exactly what you should or shouldn’t be saying.
The ‘arrest speech’ is designed to give a short, sharp version of your basic rights. It’s something they can throw at you as they’re putting you in the back of a van, rather than having to stand there and recite every nuance of the law.
But yes, it could maybe use some rewording. We do have the right to silence here as well as the right to not self-incriminate (yes, just like the US - you’re not special snowflakes), and I think most people here understand that and to just keep quiet until they get a lawyer. But for those who aren’t clear on this, then that may, in certain rare circumstances, become a problem.
I’m sure after 20 years of working this in practice member of The Law Society will find this contribution definitive.
But it may harm your defense. In the US that can’t happen, because the courts are specifically obligated not to use your silence against you if you have properly invoked your Fifth Amendment rights.
Your link talks about how the UK warning is actually quite complicated in practice, and that the right course of action may depend on if you are mentally disabled, not fluent in English, etc. But in the US the answer is very simple: don’t talk to the police without your lawyer. It can never harm you, and you never have to make a judgment call about what to say under duress.