Legal: does it *ever* hurt to refuse to talk until you have a lawyer present? (US)

[Bone]

After looking into it a bit - I think it’s a bit grey. Voluntary is key, but what constitutes voluntary is probably case by case. Here is the most concise summary I could find:

Although police have long been prohibited from using physical force, they are able to use a variety of powerful psychological ploys to extract confessions from criminal suspects, including the use of deception during interrogation. For example, the U.S. Supreme Court has allowed police to falsely claim that a suspect’s confederate confessed when in fact he had not (Frazier v. Cupp, 1969) and to have found a suspect’s fingerprints at a crime scene when there were none (Oregon v. Mathiason, 1977), determining such acts insufficient for rendering the defendant’s confession inadmissible. State courts have permitted police to deceive suspects about a range of factual matters, including, for example, falsely stating that incriminating DNA evidence and satellite photography of the crime scene exist (State v. Nightingale, 2012).

Although deceptive interrogation practices are generally allowable, they are not without limits. For instance, courts tend to be intolerant of police misrepresenting a defendant’s legal rights, such as telling a suspect that his or her incriminating statements will not be used to charge the suspect (Commonwealth v. Baye, 2012). It is important to note that because the totality-of-the-circumstances inquiry is fact specific, determinations of the limits of police deception are case specific. In People v. Thomas (2014), the New York Court of Appeals unanimously concluded that the officers’ conduct in eliciting incriminating statements from a father suspected of killing his infant son rendered the defendant’s statements involuntary as a matter of law.

[Left_Hand_of_Dorkness]

I find this advice so strange, thinking of four encounters with the police:

1. When my car stereo and CD collection was stolen, I absolutely talked with the cops without a lawyer present. Obviously I wasn’t a suspect here, so in all these cases it needs to be clear that obvious victims can talk with a lawyer.
2. I had a paycheck stolen in 1994 when it fell out of my pocket. Four years later, in the same town, a different paycheck was stolen from my mailbox. After the police came to my house to take my statement, they left–and then like 90 seconds later one of them knocked on the door again. “That’s a real coincidence, isn’t it?” he asked. “You getting two paychecks stolen, what are the odds?” It suddenly seemed like he thought I was running some sort of scam. I shrugged and reiterated what had happened, and that was the end of it (except that the new thief got caught).
3. When I’ve been stopped by a cop for speeding or for having an expired registration, I’ve always talked with them.
4. Long ago my mom owned some land in the country, and on the night of a meteor shower I and some friends drove out there and laid some blankets in the grass and watched the sky. A dumbass neighbor called the cops (for no reason other than seeing a car out on this land that as far as they knew was uninhabited), and the cops came out and shone flashlights in our eyes and accused us of trespassing and implied we were smoking pot. I explained everything to them, gave them my mom’s phone number, denied the pot-smoking–and after some general harassment of us, they left.

In none of these cases did I demand an attorney first. In all of these cases, I think the only effect of demanding an attorney would have been that I’d be out a few hundred bucks and the whole interaction would’ve taken a lot longer.

What exactly are the parameters under which people are saying to lawyer up? Would that advice apply to any of these circumstances I described above?

[Northern_Piper]

@Bone

After looking into it a bit - I think it’s a bit grey. Voluntary is key, but what constitutes voluntary is probably case by case. Here is the most concise summary I could find:

Voluntariness is a different issue from a plea bargain, though.

[sps49sd]

@Machine_Elf

“I can detain you here until the drug K-9 arrives to inspect your car.”

“Acknowledged.”

Now he has to decide if he should waste everyone’s time with what may be an unproductive K9 search. If you’re lucky, he won’t - or he will, but the dog won’t find anything. But you don’t help yourself by confessing upfront, consenting to a search, or lying in an attempt to avoid being arrested.

I did that, and the K-9 officer had the dog jump on my hood during the search. Then he said the dog had signaled, so they searched my car anyway.

Nothing was found. I don’t do drugs, they haven’t been in my car, and too many police officers are jackholes.

[sps49sd]

@Left_Hand_of_Dorkness

I find this advice so strange, thinking of four encounters with the police:

1. When my car stereo and CD collection was stolen, I absolutely talked with the cops without a lawyer present. Obviously I wasn’t a suspect here, so in all these cases it needs to be clear that obvious victims can talk with a lawyer.
2. I had a paycheck stolen in 1994 when it fell out of my pocket. Four years later, in the same town, a different paycheck was stolen from my mailbox. After the police came to my house to take my statement, they left–and then like 90 seconds later one of them knocked on the door again. “That’s a real coincidence, isn’t it?” he asked. “You getting two paychecks stolen, what are the odds?” It suddenly seemed like he thought I was running some sort of scam. I shrugged and reiterated what had happened, and that was the end of it (except that the new thief got caught).
3. When I’ve been stopped by a cop for speeding or for having an expired registration, I’ve always talked with them.
4. Long ago my mom owned some land in the country, and on the night of a meteor shower I and some friends drove out there and laid some blankets in the grass and watched the sky. A dumbass neighbor called the cops (for no reason other than seeing a car out on this land that as far as they knew was uninhabited), and the cops came out and shone flashlights in our eyes and accused us of trespassing and implied we were smoking pot. I explained everything to them, gave them my mom’s phone number, denied the pot-smoking–and after some general harassment of us, they left.

In none of these cases did I demand an attorney first. In all of these cases, I think the only effect of demanding an attorney would have been that I’d be out a few hundred bucks and the whole interaction would’ve taken a lot longer.

What exactly are the parameters under which people are saying to lawyer up? Would that advice apply to any of these circumstances I described above?

For 3 and 4, you could just not answer questions, period. You have that right. The burden is on law enforcement to show you have violated whatever law.
For 4- maybe tell them it is your mother’s property; who has standing to report ‘trespassers’? We don’t have to let them harass us.

[Moriarty]

@sps49sd

For 3 and 4, you could just not answer questions, period. You have that right. The burden is on law enforcement to show you have violated whatever law.
For 4- maybe tell them it is your mother’s property; who has standing to report ‘trespassers’? We don’t have to let them harass us.

Here’s the thing: you do have the right to not answer questions, but the police might take your refusal to answer even basic, non-intrusive questions as suspicious, at which point you will likely be detained (e.g. possibly handcuffed and then frisked for police safety) while they investigate further.

So, from a practical standpoint, if you have done nothing wrong (and you know you have done nothing wrong), most people will reasonably decide to communicate with law enforcement in order to avoid the appearance of acting suspicious, thereby justifying a delayed detention.

Now, if you have nothing but time on your hands. there is no harm in refusing to talk to the police, at all. But be prepared to advise them of who you are while they run a check for warrants and probably search your immediate area. It would help, at this point, to explain that your reticence is a “civil rights” kind of thing so they can at least understand what’s going on. Once they run out of ideas, they should let you go…

Generally, though, and as I noted upthread, there really is no harm in talking with the police, provided that a) what you say is not inconsistent with the evidence and b) what you say is not, in itself, incriminating. If you put this into practice, you can figure out that it basically applies if you are truly innocent. If you are guilty of something, though (say, you have illegal fireworks in a cooler in the back seat), there is still no harm in truthfully answering that you are driving home, that you live in town, or that you work at the local Piggly Wiggly. It’s only when the subject of the cooler comes up that you shouldn’t propose a story - better to just demure vaguely, along the lines of “I have nothing to say about that”.

[md2000]

@Bone

After looking into it a bit - I think it’s a bit grey. Voluntary is key, but what constitutes voluntary is probably case by case…

As I understand it, even for a Terry stop, to detain you there has to be something more than you are just walking down the street. There has to be some articulatable reason why you might be a suspect in a crime. And then, if I recall my Terry Stop lore, they can for example pat you down for weapons, but not search so thoroughly that they find that tiny baggie of powder in your pocket.

@sps49sd

I did that, and the K-9 officer had the dog jump on my hood during the search. Then he said the dog had signaled, so they searched my car anyway.

Nothing was found. I don’t do drugs, they haven’t been in my car, and too many police officers are jackholes.

The old saying is - you can beat the rap but you can’t beat the ride. If the cops want to be dicks, they can be. Scratching your hood was just a slight additional “fuck you” from a guy on a power trip. Sniffer dogs are notorious for responding to handler cues as much as to real data. (I wonder what would happen if the dog found extreme chili powder in your floor carpet?)

@sps49sd

For 3 and 4, you could just not answer questions, period. You have that right. The burden is on law enforcement to show you have violated whatever law.
For 4- maybe tell them it is your mother’s property; who has standing to report ‘trespassers’? We don’t have to let them harass us.

The corollary to “say nothing” would be - “say only the facts and as little as possible”. What tends to get people in trouble in a need to ramble on, thus presenting more facts for the suspicious types to pull apart. For #4 it might also have helped to remind them that you as agent of the owner did not invite them onto the land, so now that their curiosity was satisfied, they were free to leave.

[Melbourne]

@md2000

Just to reiterate - in crime dramas (Law & Order 101) the police carefully don’t offer a deal - they only tell you “make things easier for all of us” if you talk.

But that wasn’t the way back in 80’s. Either the police have changed, or crime dramas have changed.

[DavidwithanR]

@Moriarty

Here’s the thing: you do have the right to not answer questions, but the police might take your refusal to answer even basic, non-intrusive questions as suspicious, at which point you will likely be detained (e.g. possibly handcuffed and then frisked for police safety) while they investigate further.

So, from a practical standpoint, if you have done nothing wrong (and you know you have done nothing wrong), most people will reasonably decide to communicate with law enforcement in order to avoid the appearance of acting suspicious, thereby justifying a delayed detention.

Now, if you have nothing but time on your hands. there is no harm in refusing to talk to the police, at all. But be prepared to advise them of who you are while they run a check for warrants and probably search your immediate area. It would help, at this point, to explain that your reticence is a “civil rights” kind of thing so they can at least understand what’s going on. Once they run out of ideas, they should let you go…

Generally, though, and as I noted upthread, there really is no harm in talking with the police, provided that a) what you say is not inconsistent with the evidence and b) what you say is not, in itself, incriminating. If you put this into practice, you can figure out that it basically applies if you are truly innocent. If you are guilty of something, though (say, you have illegal fireworks in a cooler in the back seat), there is still no harm in truthfully answering that you are driving home, that you live in town, or that you work at the local Piggly Wiggly. It’s only when the subject of the cooler comes up that you shouldn’t propose a story - better to just demure vaguely, along the lines of “I have nothing to say about that”.

To me, this means the famous “right to remain silent” is kind of a fraud. If silence can get you detained and investigated, you don’t really have the right to remain silent, do you. I think the Miranda wording is misleading and dishonest, until a person who is stone-cold silent from the very beginning, and gives no indication that they’re even listening, is treated as completely innocent.

[DavidwithanR]

Missed edit window:

Of course the person has to comply with physical instructions such as don’t come any closer or keep your hands where I can see them.

[Left_Hand_of_Dorkness]

@md2000

The corollary to “say nothing” would be - “say only the facts and as little as possible”. What tends to get people in trouble in a need to ramble on, thus presenting more facts for the suspicious types to pull apart. For #4 it might also have helped to remind them that you as agent of the owner did not invite them onto the land, so now that their curiosity was satisfied, they were free to leave.

Imagining three versions of this conversation:

Me: I’d like to remind you that as agent of the owner I did not invite you onto the land, so now that your curiosity is satisfied, you are free to leave.
Cops: Oh! Right, good point! Bye then!

or:

Me: I’d like to remind you that as agent of the owner I did not invite you onto the land, so now that your curiosity is satisfied, you are free to leave.
Cops: Are you fucking with us? I think I smell weed. All right, put your hands behind your back, asshole.

or even:

Me: I’d like to remind you that as agent of the owner I did not invite you onto the land, so now that your curiosity is satisfied, you are free to leave.
Cops: Are you kidding, sir? We’re out here because a neighbor reported a disturbance, and I see no proof that you own this land. You’re behaving suspiciously, and I swear I smelled weed earlier. We’re doing everything by the book, so you can cool it with your smart mouth.

Which conversation do you think is most likely?

If all I want is to return to stargazing, is telling the cop (in whatever terms) to get the hell out of there going to get me back to stargazing fastest?

[DrDeth]

@Patch

That rolls back to post chappachula’s post #13. Does he recommend never talking to a cop at all, even if you’re just a witness to an event?

It really depends on the tone and circumstances. If they have read your your rights or called you into the station or are detaining you, yes, STFU and tell them you want a lawyer.

If it is casual conversation, sure you can tell the cop you saw Car A run the stop light and hit car B. And you’re a jerk if you don’t.

[pkbites]

@md2000

Just to reiterate - in crime dramas (Law & Order 101) the police carefully don’t offer a deal - they only tell you “make things easier for all of us” if you talk."

@Melbourne

But that wasn’t the way back in 80’s. Either the police have changed, or crime dramas have changed.

Are you sure you’re not confusing the police with the prosecution? Sometimes there will be an ADA present during an interview and they can offer a deal but I can’t. And that is one thing I can’t lie about. I cannot tell someone “I will only charge you with negligent homicide instead of 1st degree homicide if you confess.” And I believe there is a section on the plea questionnaire that asks if such a thing was offered.

And if the prosecutor offers it it’s worded such as “If you plead guilty to this I will only charge you with this, but then you will have to allocute.” It is a word game admittedly but not one I can play and when the DA plays it it’s not worded “confess or else”.

[OPD1975]

I’m an LEO with over 25 years on the job, and I can tell you that what you need to concern yourself with is “spontaneous declarations” prior to being interviewed by police. For example; I pull up to a crime scene and a person runs up to me and says, “I hit him in the head with this club because he called me a dirty name.” That spontaneous declaration is admissible in court, without the suspect first being admonished of his/her rights under Miranda vs Arizona. Spontaneous declarations are exempt from the Miranda admonition. The Miranda admonition is only required prior to when the arrested person is going to be interviewed by police.

Lawful arrests are made under “probable cause” not simple verbal admissions. “Probably Cause” is defined as a set of set of circumstances that would lead a “normal” person to believe a crime has been committed and the person being detained has committed that crime. Again, Miranda admonition is only required prior to a police interview, and not required in conjunction with a lawful probable cause arrest.

Suspects are arrested based on probable cause. Suspects can be detained, arrested, searched, booked, and incarcerated pending trial, without any interviews or asking him/her any questions, all based on probable cause alone. If a suspect does wave his/her 5th amendment rights and agrees with talk to me after the arrest, then that’s just icing on the cake for me and makes the prosecutor’s job easier.

It should be noted that the Miranda admonition is only required in a police investigation when “the criminal investigation has focused on a person, or persons, as a possible suspect”. While investigating a crime, I can talk with dozens of witnesses, bystanders, and associates, without any Miranda admonition given to anyone. But, when that investigation singles out someone, or a group of individuals, as possible suspects in the crime, the they must be advised of their 5th amendment rights before any questioning is done. The Miranda admonition is total and absolute. Once the 5th amendment is invoked by a suspect, from that point on it is always invoked. Any further questions and interviews stop completely and are not admissible in court. No coercion, promises, or deals are made by the police to get a suspect to “talk”. The district attorney’s office is the only entity authorized to make any “deals” with a suspect.

[buddha_david]

@OPD1975

Lawful arrests are made under “probable cause” not simple verbal admissions. “Probably Cause” is defined as a set of set of circumstances that would lead a “normal” person to believe a crime has been committed and the person being detained has committed that crime. Again, Miranda admonition is only required prior to a police interview, and not required in conjunction with a lawful probable cause arrest.

Suspects are arrested based on probable cause. Suspects can be detained, arrested, searched, booked, and incarcerated pending trial, without any interviews or asking him/her any questions, all based on probable cause alone. If a suspect does wave his/her 5th amendment rights and agrees with talk to me after the arrest, then that’s just icing on the cake for me and makes the prosecutor’s job easier.

I’m starting to think the biggest risk of not talking to police is suddenly getting labeled in the media as “A Person of Interest”; which, legally, is not the same as “Suspect” but most lay people think it is. :dubious:

[pkbites]

@OPD1975

The Miranda admonition is only required prior to when the arrested person is going to be interviewed by police.

But not surprisingly most people think the moment one is arrested they get mirandized thanks to shows like L&O. They’re fighting with the suspect, huffing and puffing while trying to give them their rights.:rolleyes:

In reality more than 90% of my arrests don’t include Miranda because I have no reason to question them: I already know what they did and what the facts are. Every now and then someone trots out of the booking room after making bond and says “Ha ha, i’m going to go free because you didn’t read me my rights!”. I’d love to see the look on their face when they consult with an attorney and are told I didn’t have to.

Now, Loach may come in here and say that he has to give Miranda no matter what. But I believe that has to do with some ruling only pertaining in his specific state/jurisdiction.

[Machine_Elf]

@DavidwithanR

If silence can get you detained and investigated, you don’t really have the right to remain silent, do you.

Sure you do. Temporary detention and investigation, while perhaps annoying, isn’t legally considered a punishment/penalty. Detention is subject to restrictions; it’s not allowed to go on and on and on while the cops pore over your life and belongings looking for anything they could conceivably arrest you for. Pulled over for speeding? You can be detained there at the side of the road for a few minutes while the cop discussed the matter with you and checks your license status, but if you don’t want to say how fast you’re going, he can’t retaliate by interrogating you for an hour about all the places you’ve been for the past week to see if maybe you did something illegal that he could arrest you for. Detained because they think you might have been involved in a recent robbery? You can help eliminate yourself as a suspect by explaining that you were at a watersports fetish party when the robbery happened, and there are people there who could confirm this. If you’d rather not mention that, the cops will need to do a bit more work to eliminate you as a suspect, perhaps by having the victim look at your face and decide it wasn’t you, or by other means. But they can’t keep you in jail for two weeks just because they think you were an asshole for remaining silent.

People make similar mistakes about bail. There’s a lot of anger when an obviously guilty dirtbag gets released on bail prior to trial, as if a great injustice is being done and the dirtbag has escaped punishment - when the reality is that he has not (yet) been found guilty, and so we’re not (yet) allowed to inconvenience the dirtbag by keeping him under lock and key unless we have good reason to believe he won’t show up for the trial.

[Left_Hand_of_Dorkness]

@OPD1975

I’m an LEO with over 25 years on the job

Hey–welcome to the board, and thanks for the great post!

[DSYoungEsq]

@pkbites

But not surprisingly most people think the moment one is arrested they get mirandized thanks to shows like L&O.

Goes WAAAAAY further back than that. Law enforcement shows started doing that ritual not long after Miranda was decided. I’d bet that shows like Adam-12 had scenes like that in the later 60s and early 70s. Might check that out on Hulu when I get back from vacation.

[postpic200]

@Measure_for_Measure

Generally speaking I understand it’s best to consult with a defense attorney before having a lengthy conversation with a police officer or prosecutor. Kevin Drum asks whether there are exceptions to this rule: [INDENT][INDENT][INDENT][INDENT] I have a question for any practicing defense lawyers in the audience: does it ever hurt to refuse to talk to police or prosecutors until you have a lawyer present? Is it ever the case that you lose, say, a chance at immunity if you demand to have your lawyer present before you say anything? And is it considered prosecutorial misconduct to repeatedly try to talk someone out of speaking to their lawyer, even after they’ve said they want to? [/INDENT][/INDENT][/INDENT][/INDENT] Wider context is with regards to an old case described in this link. Emphasis in original. I remind my fellow posters that this is GQ and the question involves facts about the law as practiced in the US. Illuminating international comparisons might be an interesting hijack though, after the question is answered.

While it might not hurt, it won’t help you.

There is no real up side when you talk to the police, people think it an officer’s job is to stop crime and to help give justice, when in truth they only gather evidence. Think about it, the police need probable cause to stop you, that is they already suspect you of a crime, they need evidence that you committed a crime and thus the police will ask for your side of the story.

Now according to the courts, after you’re arrested you must ID yourself (note in some states if you are stopped by the police you must ID but the police must have probable cause to stop you) then you must say you are going to remain silent and you want a lawyer. That came from a case where that came from the guy was silent but never invoked his right to remain silent, the police asked one question to which he answered yes, and that one word got him convicted. Even as a witness, it might be in your best interest to answer questions.
To use the favorite phrase of officers “In this day and age” (as seen in many youtube videos), it’s in your best interest to NEVER talk to the police unless a lawyer is present. We don’t live in Mayberry, it’s not the 1950’s and the police aren’t your friends.

Here’s the advice I gave my son, the ONLY things you tell an officer is “I invoke my right to remain silent, and I want a lawyer.”