Someone else mentioned this, isn’t #1 going to be used by the defense? They have access to the interview too, so if you are totally innocent, they could hammer that point that the police interviewed you, you cooperated, and they found nothing.
I believe the list is incomplete, if you were totally innocent, you could have #4 and #5 happen:
You are innocent and something you say leads them to believe that, dropping you as a suspect
You are innocent and something you say leads them to the real suspect, clearing you.
A lot of the hard-of-thinking types subscribe to what I call “Judge Judy Logic”, which you see from the animals in her circus. “He owed me $400 and wouldn’t pay, so I broke into his house and took his TV.” They don’t realize that two wrongs don’t give you the right.
They also don’t realize that the cops don’t really care why, unless that becomes the grounds for higher charges.
The force can have a strong influence on the weak-minded.
But if I’m innocent, and I know it, I’m potentially hurting myself by talking without an attorney present. I certainly don’t owe the system my freedom if I’m innocent.
“The Supreme Court held that under two circumstances a person must be given precautionary warnings, creating the two-prong test of Miranda. The first prong is custody, which is when a person is in the custody of law enforcement or his or her freedom of movement is restricted by law enforcement. The second prong is interrogation, which is when the person is then questioned about a criminal matter in which he or she is involved. If the two-prong test is met, the precautionary warnings must be given if the information obtained is to be admissible.” http://uscivilliberties.org/cases/4155-miranda-v-arizona-384-us-436-1966.html
Perhaps there’s confusion with, as the Court phrased it, “police-dominated atmosphere,” which can be a factor in assessing voluntariness.
But since you asked, after almost two decades of police work, I can confirm three elements identified by other, esteemed, Dopers…
This. Also, there are lots of sharp people who use the interview to obfuscate, misdirect and spread confusion – or try to.
Thanks, YogSosoth. I would add, since most criminal investigations are not about murders…
Not only are you innocent but no real crime actually took place; the situation is civil, or you had permission (for instance in theft or trespass allegations) or the other person misunderstood what they saw (you had a cell phone, not a gun).
Suppose you’re in a situation where you actually do know something helpful to the cops, but you also might be considered a suspect.
Example : your next door neighbor was murdered. You actually did see a suspicious vehicle and an individual shortly after you heard a shot fired. You could give the police critical info that they could use to solve the case.
But wait a minute. You were next door. Maybe you live alone. You can’t prove beyond any doubt that you didn’t commit the murder yourself. Even if the neighbor is your best friend, the prosecutor can just speculate that you must have had a falling out .
What if no other witnesses saw the suspicious person that you saw? Won’t telling the police about him just make it look like you’re actually lying to make them suspect someone else?
How can you reasonably help the justice system get the right guy without running the risk of giving them ammunition to use against you instead.
Only thing I can think of is maybe you could contact an attorney, tell them you have evidence, and have the attorney negotiate a signed blanket immunity deal on your behalf. Say, a document that states that they agree not to use any evidence you give them against you for any reason.
But there’s the problem. If you admit you were on the land, or were told you could borrow the lawnmower - even if you claim permission - it’s your word against the land-owner’s. You may have misunderstood. You may have asked the wrong person. The owner may be a nasty dickweed or regret making the offer, and is now doing a retroactive rescinding of the permission. Whose word carries more weight, the owner or the guy who admitted “trespassing” or possession of “stolen” property? He wouldn’t have called the cops if he meant to give permission and still meant to give permission. You can’t fight physical evidence, but you sure as ship can avoid adding an admission if the deed is over and there’s no physical evidence to be had.
(Note the UK has the proviso - “if you fail to mention something that you later bring up in defense, that omission can be evidence against you.” The USA has no such provision, “he failed to mention he was with his grandmother at the time until two weeks after his arrest”.
The frustrating truth, however, is that it takes time and money to get that attorney, and it is possible that what you tell them might be so convincing that they’d let you go immediately.
I’ll just add that every single one of the attorneys to whom I am related (6), admiteedly only one of whom is a defense attorney, has the same advice:
Do Not Speak To The Police Without An Attorney, Beyond Name & Address.
“Am I free to go?”
If yes, do so.
If no, request attorney.
These relatives aren’t cop haters, at all. They include patent attorneys, family law, and tax. But they all agree that since you don’t know what the police are thinking, it’s too risky that you’re feeding their suspicions.
If you say to the police that you know where your wife was going the morning she disappeared, but you want immunity before you tell them anything, I tend to think that all you will accomplish is to immediately narrow their investigation down to one suspect.
I used to watch the reality show “First Forty Eight” (very dark, somewhat dodgy show about homicide detectives) and it always amazed me how in actual real life murder investigations, featuring people who were often professional criminals of some kind, the would happily incriminate themselves in an interview room when they could just as easily have kept quiet. Of course I don’t know how much the fact it was a reality show, with cameras, factored into that.
I’ve asked several times, in earlier threads on this topic, and I haven’t felt like I ever got a clear answer:
Given that I already know I don’t have to answer cops’ questions (during any kind of “interview” or “interrogation”, whatever you call it, consensual or custodial or otherwise), why do I need to care if they read me my Miranda rights or not, and why do I need a lawyer? Can’t I simply decline to talk?
What happens if I decline to talk, but without having a lawyer? Can they then hold me for the legendary 48-hour non-stop tag-team interrogation, during which they will horribly coerce and badger me? Can they suddenly decide they have “cause” to search my car, whereby they will dismantle it into its constituent molecules?
It’s been mentioned that if I request a lawyer, the interview will come screeching to a halt at once. If I don’t ask for a lawyer, but just tell them that I don’t care to talk, will that work as well, or will they keep hammering? Do I have to ask for a lawyer in order to get an interview to halt?
What happens if I ask for a lawyer (thus bringing the interview to a halt), and then don’t bother to get one? If I am in custody, will they just keep me there while they wait patiently until I starve?
My core question: Given that I know I don’t have to talk, do I need a lawyer? If so, why?
I remember in my youth how two acquaintances of mine had stolen a car. I heard this story later. One of them, with all the technical knowledge, had broken into the car, jump-started it and had driven it away with the other sitting shotgun.
The local police, for some reason, suspected the shotgun sitting person and brought him to the local police station for questioning. No lawyer involved. They told him point blank that they knew he was guilty because his fingerprints had been found on the steering wheel, something that was impossible since he had never touched the steering wheel. He knew then they had very little to go on and thus retorted that no, he was innocent. He was let go.
The UK is obviously a completely different jurisdiction, but there was a reality TV show on a UK channel recently which followed what happened when people were arrested for various crimes. They were allowed to film actual police interviews.
One I recall was a guy who was arrested for conspiracy to commit murder. He immediately demanded a lawyer, and the interview was suspended until the lawyer arrived. The lawyer and suspect had a consultation,and thereafter the suspect responded to every police question with “No Comment”. (And I mean every question. “What school does your son attend ?” . “No comment”).
While this was going on his lawyer was sitting beside him tapping away on his laptop. Every so often, the lawyer would announce that he needed to consult with his client. After the consultation, the lawyer would announce that they had some comments in response to recent questions, and would read a statement out from his laptop. Thereafter it was back to no comment. The voiceover commented that the statements would be admissible as part of his defence.
Something I think is worth bringing up about the sentiment of “But if I ask for a lawyer and refuse to answer questions they’ll consider me the prime suspect!” is that the use of your rights, specifically the fifth, cannot be used against you in court. The cops should know that, the district attorney (who is actually going to decide whether to charge you) most definitely knows that, and if they don’t have additional evidence, they’re not going to charge you at all.
If they have that additional necessary evidence, you’re in for a bad time anyways, and like the lawyers in the various links have said, you have absolutely no idea what will be considered suspicious or incriminating if you do try to talk your way out of it. You don’t know the particulars of the crime because you didn’t do it, so you can’t be sure that even what you would think would be an iron-clad alibi is actually going to make you look innocent.
If they had no evidence, then they would have had to let him go anyway.
If his sole response was “I’m innocent”, then that denial alone could be used against him, since he is declaring that he is innocent of all crimes that evening when he is likely to be guilty of abetting. If he were charged, that denial would look real bad in court.
If he declared “I’m innocent of stealing the car, I only went along for the ride” then he has just admitted to a major part of the conditions needed for abetting. Giving the police most of the evidence needed to prove you committed a crime is rarely a good thing.
If you posted this story to illustrate why you should never talk to the cops, it serves its purpose. But I think that you think it is an example of a situation where talking to the cops is beneficial. It isn’t.
If the cops were inclined to charge your friend, then him saying “I didn’t do it. Honest Injun!” wouldn’t change that. If they had enough evidence to charge him then they would have, and his denial would possibly make it worse and definitely couldn’t help him. If they lacked evidence, then saying nothing rather than denying the crime wouldn’t provide any more evidence.
Cops expect everybody to deny the crime. They never believe it when a suspect denies a crime. Therefore denying a crime won’t get you released any faster than saying nothing. If you have evidence that you think proves you are innocent, run it past your lawyer first and see if he agrees that you should give it to the cops.
If you are innocent and the cops charge you despite that, then your denial is at best going to make it look worse at trial. At best it won’t help because juries expect guilty people to deny crimes, just like the cops do.
The worst possible course is to do what I suspect your friend did: get tricked by the cops into admitting to one crime in defence of another. Saying “Hah, I know you couldn’t have found my fingerprints on the wheel because I only ever sat in the back seat of the car my friend stole” is about as dumb as it gets, and it is exactly what the cops were fishing for when they threatened to charge him with the theft.
In your freind’s case, the cops didn’t charge him, either because there wasn’t enough evidence or because he was a little fish. But that doesn’t mean that what he did was nay less stupid.
Agreed. But it can be used OUTSIDE of court. The fear is that even being silent might make one the focus of the investigation, so that even if the charges are dropped later, the next few hours or days could be hell.
While I do understand why that motivates people to talk, I explained why it’s unfounded within that post. Most people I’ve talked to seem to think the police charge you with a crime, but the district attorney’s office has that responsibility, and they’d be crazy to charge you based on a lack of cooperation, because it can’t be used in court, and they’re never going to take an obviously baseless case in front of a judge. Similarly, the judge who would issue warrants for further searches is not going to do so simply because you clammed up- they would be likewise invalid in court, and any actual evidence found could be excluded at trial.
If you do decide to talk, however, and make incriminating statements, despite being innocent, then that may very well be grounds to either charge you with a crime or persuade a judge to grant a warrant.
I think that “unfounded” is not the right word to use here. I think what you really mean is that it’s not worth the risk, because the trouble and expense of going to court far outweighs the trouble and expense of getting a lawyer for the questioning.
Would you agree that in a small number of cases, the lawyerless person DOES say something which causes the police to leave him alone? I would be willing to stipulate that most people greatly exaggerate the odds of their success at this; my only point is that it’s not totally unfounded.
