Thank goodness criminals are stupid. It’s bad enough to be so “helpful” to the police that you talk yourself into a conviction if you are innocent, but if you are actually guilty, shut up!
As for TV, I am getting really annoyed at Major Crimes, where they routinely run roughshod over suspects (both the innocent and the guilty), where they mirandize everyone that walks into the PAB, and yet they all talk themselves right into a conviction. The “closers” in that show wouldn’t have any where near the success rate if people would just STFU. Same with Castle.
Though this isn’t a new thing - I’m watching old Dragnet episodes, and it is amazing how many perps just confess right on the spot. I guess in the show’s defense, they only had a half hour to work with.
My advice, if you watch crime dramas, is to pretend they are happening in the fictional country of Americastan which appears to be identical to the US but has few constitutional protections for the accused.
My favorite L&O-type line is “Do I need a lawyer?”
At which point the Americastan cops basically say “if you call a lawyer instead of taking to us, the conversation is over, you will be charged with murder, found guilty, and hung, drawn and quartered after the boys in prison have had their fun with you…”
Can a cop talk a guy out of asking for a lawyer?
(Note the guy does not specifically ask for a lawyer. He asks if he needs one, or says “maybe I should call a lawyer.”)
Except maybe in Chicago PD where they conveniently beat the crap out the guilty guys (never a mistake)… Unlike The Killing, where the wrong guy(s) get beaten or shot (but not by police). The L&O guys just make a big theatre of arresting the wrong guy in the most embarrassing way - at fancy cocktail party, in front of his class, arrest the con at his steady job, then… “oops, it wasn’t him.”
Apologies, I would pick out the parts I am addressing but it’s a pain in the ass to do on my iPad so I just quoted everything.
If any lawyer burst in (I guess he would have to burst into the lobby since he would have no direct access to the interview room) and starts yelling “The interview is over!” he would be looked at like he was a clown. Instead they will usually call ahead or come in and say “Mr Smith is being represented by me. No further questioning of my client until I have had time to confer with him.” Competent lawyers save the theatrics for the jury.
If in the scenario the subject was Mirandized and being interviewed and says “I don’t want to talk to you,” the interview might not be automatically over. However, you better clarify before any further questions. I’ve seen interviews thrown out for less. Something like “I explained your rights including the right to remain silent do you still want to talk to me?” Just not answering is murkier.
You can talk about anything there are no rules against taking time to get to the heart of the matter. What will get the the interview tossed is trying to trivialize or convince the subject to ignore their rights. Now I know that I’m in an area where these issues are looked at very strictly by judges and all of this is subject to judicial scrutiny. Each situation is going to be slightly different and each judge will look at it slightly differently.
I’ve had an important interview thrown out because the subject mentioned the word lawyer and his rights were not re-explained to him. He never asked for a lawyer.
What Loach just said. I’d read them Miranda and let them know, in no uncertain terms, that if they even mentioned the “L” word, the interview was over, there was nothing I could do to help them and, assuming there was enough to charge them, it was off to jail where they could wait for their lawyer. I’d also tell them, because it was true, if they were going to request a Public Defender, they could be sitting in county for a week or more. Most suspects either “lawyered up” right away or waived and went on with the interview. It was unusual to have someone change their mind halfway through and stop talking. We did have a guy we were questioning in connection with a serial killing case who did just that. Once he realized he might be a suspect he invoked and that was that. That case remains open.
Two essays at Popehat illustrating their oft-stated mantra: Please Shut The Fuck Up! – Featuring politicians who thought they could talk their way out of something.
Is New Jersey particularly strict on Miranda? Around here, MikeF’s tactic would likely be upheld as long as he didn’t sound like he was threatening. (assuming “maybe” was used). If it was along the lines of:
“(polite voice) You have every right to talk to a lawyer. However, I have enough evidence against you to get an arrest warrant. If you are invoking your right to remain silent, I will leave and you will be transported to the county jail. You will see a magistrate in the morning and bond will be set. If you cannot post bond, you will have a preliminary hearing within 10 days at which you will have a lawyer appointed that you may speak with. Do you still wish to remain silent?”
When was this, pool? During my entire time in service, if a First Sergeant (or anyone else in the accused’s chain of command) had done that (and by “that” I mean “spoke with you concerning the alleged offense without your legal representative present”), that person would be on the carpet in front of his superior so fast it would make gods blink.
As you mention, the Army does have its own legal system; however, it is still based on the United States constitution.
Thanks to Loach and MikeF for their expertise. AFAICT police don’t play games around the Miranda warnings because, for the most part, it isn’t necessary. No matter how many times attorneys or the ACLU tell people not to talk to the police, they do anyway.
I wonder how much that is influenced by what people see in crime dramas on TV. Suspects almost always talk without an attorney on TV, because it moves the plot along. I expect criminal suspects watch a lot of TV, and think, unconsciously or otherwise, that it is just like that in real life - and therefore blab their way into an orange jumpsuit.
In the abstract world where legal principles live, there’s an important distinction between coercing someone to change his mind and “talking a guy out of his request.” If coercion is present, then the suspect hasn’t voluntarily waived his right to a lawyer. If coercion isn’t present, then the guy is just freely and rationally deciding what to do about his predicament.
Of course, it’s incredibly messy in the real world, and the line between where a suspect’s free will is in control of whether he talks or not and where he’s now been coerced by the police into submitting to questioning may not exist at all in any practical sense. And at least in terms of the black letter law, courts are going to keep these protections pretty robust, and probably aren’t going to come right out and say “whatever, he probably should have resisted being talked out of it that easily.” So as a result, as you’ve seen in this thread, good cops are going to be pretty sensitive to when the subject of a lawyer comes up – there may be a good argument that all you did was say “you can have a lawyer, but if you get one then this will get dragged out” or something like that, and that you weren’t at all overriding the suspect’s will about what he wanted to do, but at the end of the day, yeah, it does look like you talked him out of it, and that’s just a free shot for him at an involuntariness argument.
I see the nuance there, but basically saying “these bad things will happen if you keep asking for a lawyer” (and they sound pretty bad) is pretty much the definition of coercion. Especially when they say “we can’t help you” when what they really mean but neglect to say is “the exact same thing will happen to you if you cooperate, except you are also guaranteed to go to jail for a long time after that.”
Yes New Jersey is very strict with regards to Miranda. My county judges maybe even more so. Miranda needs to be read and responded to strictly off the standard form. No editorializing. If anyone in the middle of it starts to ask what will happen to him if he doesn’t agree I say something like “I can’t talk to you about this case until we get through the form and you agree to speak with me.” No promises can be given. Even ones that are in your power to grant and you intend to follow through. The agreement to talk has to be 100% voluntary.
Often people agree to talk in order to find out what we know about the case and what evidence there is.
Once an interviewee agrees to talk, and starts talking, does he still have the right to stop at any time?
I know in court (and before a Grand Jury too I think), a witness cannot selectively take the 5th Amendment to decline questions that he doesn’t want to answer. He must take the 5th right at the start, but if he starts answering any questions he cannot change his mind and take the 5th afterward. Is that correct? Is that absolutely true, or true just in certain kinds of cases?
What about these “interviews” with police?
– What if the Miranda requirements don’t apply? Can the subject pick-and-choose which questions to answer, and decide not answer any more at any time?
– What if the Miranda requirements do (or should) apply but the subject hasn’t been “Mirandized” (yet)? Can the subject pick-and-choose which questions to answer, and decide not answer any more at any time?
– What if the Miranda requirements do (or should) apply and the subject HAS been “Mirandized”? Can the subject pick-and-choose which questions to answer, and decide not answer any more at any time?
– In each of the above cases, does the answer change if the subject states that he is taking the 5th Amendment, versus if he simply says he doesn’t want to answer any more questions without mentioning the 5th?
Of course he does. Right there in our Miranda forms which they have to acknowlege understanding before the questions begin there is a clause which states they can exercise their rights at any time.
That is a whole other issue. In this thread we are talking about suspects. If it goes to trial defendants can not be compelled to testify. Witnesses who are being compelled to testify in a matter in which they are not on trial for is a completely different subject.
Yes. There is no law compelling an answer.
If a judge later decides that someone was questioned improperly without being Mirandized nothing would be admissible anyway. But still, no one is making anyone answer every question.
Still yes.
There is no contempt of detective law. You can answer or not any question. How are you going to (legally) be made to answer? In my many years as a cop and 5 as a detective I have never heard anyone say they are taking the 5th. I have heard plenty of people say they don’t want to talk or that they want the interview to be over. There are no magic words that need to be said. If the subject says he longer wants to speak the interview is over. If he doesn’t want to answer a specific question he can’t be made to. A good interviewer will take a different route to try and get an answer.
Well, no it isn’t, unless it’s also the definition of coercion if what I say in this post is persuasive. The rule isn’t that the police can’t take advantage of a suspect making a bad decision, or even that they can’t trick him into a bad decision. It’s that they can’t overcome his own free will and coerce him to speak. There’s an element of force there beyond the rhetorical.
Whether or not that’s a distinction with a difference is in most cases is, I think, a question open to debate, and outside of the GQ world I’m pretty pro-citizen / anti-law-enforcement on it. But it isn’t true that it’s the definition of coercion, legally speaking, to make an appeal to a suspect’s reason in a misleading way.
As I recall from previous threads, the basic concept is:
A defendant in a trial has the right to take the stand or not, and nothing can be read into their choice not to take the stand.
Having taken the stand and answering a question, you cannot then refuse to answer further questions about the topic having “opened the door”.
I.e. you cannot get up on the stand, say “when the crime happened I was watching TV with my grandmother”, then plead the fifth when the prosecutor cross examines “what show were you watching? Describe what happened during that show? Who were the guest stars? Name one commercial? Where did you sit, where did your grandmother sit? Did she doze off? Who had the remote?” You can’t just present your alibi or version and then refuse any questions that might show flaws in your assertion when they check your answers against grandma’s.
I’m not sure what the remedy is - whether the judge can compel you to answer on pain of contempt, or whether the prosecution can then use your silence as evidence of flaws in your claims, or both.
Obviously, in testimony before congress (and I assume Grand Juries) you have no choice whether to testify, but you can select what to answer. Since you are not on trial at that point, I assume the congress/jury may read what they want into your taking the fifth. And once you have been granted immunity, you cannot refuse to answer, since you are immune from incriminating yourself.