According to the Supreme Court you MUST say you’re invoking your right to remain silent, this come from a case where the defendant didn’t speak for 2 hours and 45 minutes then said yes to one question. He argued the fact he was silent for almost 3 hours was the same as him invoking his right to remain silent, the court ruled that you must say that you invoke that right before you remain silent. Basically speak up before being silent.
If your daughter is missing YOU ARE THE PRIME SUSPECT no matter what, until you prove you’re not.
This is factually incorrect. Police do not need probable cause to stop you, as I explained upthread.
Police can conduct a Terry stop based on less than probable cause. They can detain you based merely on articulable suspicion, although the detention will be limited in scope and duration.
And police can always walk up to you and engage you in conversation. If you stop and talk to them, even if it’s because you feel obligated to do so, it doesn’t mean that police needed probable cause of anything to converse with you. It’s your choice.
Well, in theory, if the interaction is voluntary, the cops won’t be able to use your silence as a basis to detain you (e.g. if you are standing at an intersection when an accident occurs, and a copy walks up to you to ask what you saw, and you respond with, “sorry, I don’t talk to cops”, they should just shrug their shoulders and walk away).
But there is such an obscure line about what justifies an investigatory Terry stop. Things as vague as “furtive movements” can be used to justify the detention, although probably not if that is all the cop can describe. I mean, legally you should be able to run away when a cop approaches. But if you do so after the cop saw you “acting suspicious”, I would predict that it would usually result in being stopped, frisked and questioned.
To anyone reading this, Please Please take this advice:
If you are under investigation for anything and the Police ask to talk to you, NEVER TALK TO THE POLICE WITHOUT A LAWYER PRESENT. NEVER.
Giving a witness statement is one thing–you saw x do y to z. No problem.
But if the Police are investigating YOU–NEVER TALK TO THE POLICE WITHOUT A LAWYER PRESENT. NEVER.
You will be screwed. Police are allowed to lie to you–that is well-settled law. Police care about closing the case, not solving the crime by apprehending the actual perpetrator. If you volunteer ANY information and the Police have no other suspects, and the DA wants to clear a case for the next election, you will be screwed.
(And, yes, I am speaking from experience. A misdemeanor issue that would have been absolutely nothing if my lawyer had spoke to the Police instead of me being “helpful.”)
Yeah, I know. Law and Order is just a modern example.
Actually if your daughter is missing it’s probably just a missing person case. If you watch too much A&E you might not think so.
Even if it’s a murder that’s not how the real world works either. I won’t go into a play by play of strategy but you don’t randomly pick a PRIME SUSPECT in the beginning and run at them until they prove otherwise and then pick a new one, repeat as necessary. You look at the totality of the evidence as it’s available. To call anyone a prime suspect even without capital letters from the beginning of an investigation is overly dramatic.
That’s correct. What many don’t understand is a motor vehicle stop is a type of Terry stop the burden of proof for a motor vehicle stop is a Reasonable Articulable Suspicion. It’s not probable cause. Often the officer will have actual PC but he doesn’t have to. He sees you drive through a red light. He already has probable cause to write you a ticket, he certainly has more than a RAS to stop you. Now let’s say you are driving along in your brothers car. Unknown to you your brother is suspended and has a warrant. The officer does a random inquiry on your plate and it shows your brother suspended. You fit his description. You look like the DMV photo that comes up especially throug the light legal tint of your window. He can articulate a reasonable suspicion that you are driving while suspended. Of course you are not so no PC for a ticket but the stop was valid.
You are not saying anything profound and it’s slreafy been said multiple times. I have never met a police officer that wants to put innocent people in jail.
I am not so sure this applies all the time, since my LE buddies have said they always look at the husband first if the wife is murdered.
Personally, I have never talked to a cop without a lawyer. Ever. It has pissed some cops off, and I have spent some time in a holding cell as a result. Such is the price for exercising your rights. The alternative was worse.
Huh? I’m probably misunderstanding you here, but I know from personal experience that the RCMP are under no obligation to stop questioning a suspect until that suspect has a chance to contact legal council. From the wikipedia page on Right to Silence
My complete layman’s understanding of this is that while you may have the right to remain silent under the charter, the police are under no obligation to respect it and usually don’t. However, I’d love to get a real lawyers opinion.
Yes that’s the tv answer.
In reality if there is a murder it is more often someone the victim knows. It’s not always the husband or anyone in particular. The way to lose a case is to make assumptions and don’t follow the evidence. Unless there is something pointing in a specific direction right from the start you look at motives and alibis of everyone close to the victim. You don’t start an investigation with a prime suspect. Ok sure if he’s literally holding a smoking gun over the body but other than that… If for no other reason than you don’t want to be on the stand and have the defense ask “Why didn’t you look at Fred, Joe, and Bobby? You zeroed in on my client from the beginning.”
You’re confusing the right to silence (s. 7 of the Charter - not s. 13 - Wikipedia has it wrong in the quoted part of that article)) with the right to counsel (s. 10(b)).
Right to silence is just that. You have the right to remain silent (s. 7). In a custodial situation, the police do not have to hold off if you assert the right to silence. It’s up to you to keep your trap shut. Right to silence is not tied to the right to counsel, unlike the situation in the US.
Right to counsel is different. If you assert the right to counsel, the police have to hold off and give you an opportunity to consult counsel. If they keep talking to you after you assert your counsel right, anything you say to them is potentially subject to exclusion under s. 24(2) of the Charter.
Leading case on the duty to hold off is R. v Prosper:
Not meant as legal advice, of course, but just to discuss the general rules relating to the right to counsel. If you are facing a possible criminal investigation, you should consult a lawyer in your jurisdiction.
Under Gideon, if you’re charged with a crime for which you could be imprisoned, you’re entitled to representation by the public defender at no cost to you.
When I was a prosecutor I heard about a case where a guy gave his cousin’s name at the time of his arrest. Turned out the cousin was in a lot MORE trouble, and there was a long printout of warrants for his arrest. Shown this, all of a sudden the guy remembered his own real name.
L&O does try to make an effort to be legally correct from time to time. I remember being fairly impressed with it in the early days when the competition would be shows like Matlock, where it seems legalities took a serious back seat to drama.
The most egregious example I remember from L&O was when the DA made a deal, and afterwards they were hauling the guy away.
“Hey, I had a deal!”
“Should’ve read the fine print. That deal only applied in the district of Manhattan. You did some of those other murders in Queens.”
Of course, I have trouble imagining that actually working in court in real life… At the very least, he ha a case for inadequate lawyer representation if his lawyer didn’t catch that.
L&O was often excellent when it came to points of law and in particular they would use specific aspects of New York law. They were excellent until the plot required them to deviate from reality. The plot always wins.
My biggest problem with L&O was their idea of what probably cause for an arrest looked like. The cases were often very flimsy.
IANAL.
[ul]
[li]The police can stop me any time they have reasonable, articuable suspicion that I commited a crime, witnessed a crime, have knowledge of a crime, or I am in some way acting suspicious. This is a Terry stop. I may be detained “briefly” during a Terry stop, but “briefly” has no definite limits.[/li][li]If asked, I must identify myself by giving my true, legal name, address, and birthdate. My right to remain silent does NOT extend to a refusal to provide this information. I don’t have to produce documents, but I do have to answer truthfully.[/li][li]Apart from that, I do not have to answer any questions.[/li][li]If I refuse to identify myself, they CAN arrest me for that, and my right to remain silent has not been violated.[/li][li]If I am driving a car, if the cops pull me over, I must produce my driver’s license, registration, and proof of insurance. My right to remain silent does NOT entitle me to refuse to produce those documents. If I refuse to produce the documents, I can be arrested for that alone.[/li][li]I do not have to answer any other questions.[/li][li]I can only be arrested upon probable cause that I have committed a crime. Refusal to answer any questions beyond my name, address, and birthdate, and to produce my license and registration if I am driving, may not be used as probable cause for arrest.[/li][li]I DO NOT have the right to an attorney, and to speak to an attorney, until after the police start asking me questions. I do not have the right to an attorney immediately upon arrest. I do have the right not to answer any questions.[/li][/ul]It was mentioned that the police might find it suspicious if I ask for a lawyer. AFAICT, in my case, they would be correct in finding it suspicious.
Because, if my wife is found dead, if I did it, I would immediately give my name, address, birthdate, and then ask for a lawyer. If I didn’t, I would blab my fool head off. If my wife is found dead, of course they are going to suspect me. And the more I talk, the more likely it is that I talk my way into handcuffs if I did it, and somebody else into handcuffs if I didn’t.
Regards,
Shodan
I was with you until your last paragraph, Shodan, and really disagree with the last sentence. Do you think there haven’t been spouses (or parents or children) who have been wrongly arrested for murder? And even some who have been wrongly convicted? If one’s spouse is found dead, it seems to me to be very prudent to not answer questions without a lawyer present, whether you did it or not. A lawyer presumably a) knows the law, b) will be more clear-headed, c) won’t allow you to blabber on and incriminate yourself (whether you did it or not), and d) has your best interest in mind.
I was doing 85mph in a Porsche Cayenne on a freeway in eastern Oregon where the speed limit was 65 when I got pulled over.
Policeman: I think you were doing about 75 there
China Guy: That sounds reasonable
Policeman: Any good reason?
China Guy: laughs out loud “no officer”
and that was about the end of it. Oh, I couldn’t find the insurance card either.
I’m Sure it helps to be a bald white guy in his 50’s.
Where was my jeopardy? He had me clocked and radared. I was deferential and made no excuse. Me thinks I saved myself a ticket, but please chime in if I’m missing a crucial point (in case I ever pull such a stunt again).
Reasonable articulable suspicion is what most people call probable cause, the officer has a reason to believe that you have, are or about (I have a big problem with the last one) to commit a crime in order to detain you, a vague you’re acting suspicious isn’t a reason, (in truth nothing really happens to an officer who illegally detains you or arrests you in most cases) then terry vs ohio comes into play. Personally the way I think about it is RAS lets them hold you PC let’s them arrest you.
There is currently a double standard when it comes to running away from an officer, based on how much crime is in a neighborhood. In a “bad” neighborhood the court have ruled that that police can chase, stop and frisk people if their location contributes to a suspicion of criminal activity. In a “nice” neighborhood running away doesn’t contribute to a suspicion of criminal activity. Or as some legal experts put it “If you can walk away, you can run away. It shouldn’t matter the speed at which you move away.”
A “casual conversation” is a way some police use to get around probable cause, “No I didn’t detain them we were just talking.” I’ve seen more than once where someone was a suspect, the officer never said they were detain, and started to question the person. In one case the person asked if he was being detained, the officer said no, but when they tried to walk away the officer said, “Now you’re being detained.”
So best not to talk to the police at all.
A couple things about this:
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Isn’t this based on state law in the U.S.? If so, are there some states that do not have a law that requires a suspect to provide this information?
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In Ohio, you must provide your name, address, and birthdate (when asked by an LEO) only if you are a suspect of a crime or you have witnessed a serious crime. If it’s just an encounter, you do not need to provide this info. The problem is knowing whether it’s an encounter or a Terry Stop. To determine this, ask if you’re free to go. If you’re not free to go, it is a Terry Stop, and thus you must provide the info.
I’ve retired, but I have many friends who haven’t yet. One swears that if he ever stopped a car for a minor traffic violation, and the operator pulls a dismissive hand move along with, “You don’t need to see my identification, these are not the droids you’re looking for,” he would mime it back and return to his car. As you could guess, he’s a serious Star Wars fan. I may try that if ever pulled over. Good moods and a little humor always went a long way with me on traffic stops.
SCTUS has said you must ID yourself, but IIRC IANAL they left it open to the degree of what constitutes “ID”.