More on "Never talk to cops."

[rainwalker78]

Law school professor (and guest cop) talk about why you don’t talk to cops. about 50 minute video worth watching.

- YouTube

[leadfoot]

@Acsenray

Very unlikely. All the cop has to show is that he was acting within the scope of his job and there’s no liability. You’d have to show that he was going beyond his job, engaging in some kind of personal project to waste your time.

I hope this isn’t nitpicking, but I’d say that strictly speaking that’s not quite right. A cop is not immune from being sued simply because he committed a violation in the context of his work as a cop. Indeed, the very fact that he was operating under the color of law opens up the possibility that an aggrieved person could file a suit in federal court pursuant to 18 U.S.C. § 1983:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, - See more at: http://codes.lp.findlaw.com/uscode/42/21/I/1983#sthash.iqGOgIuW.dpuf

So, for instance, an arrest or search that violated your rights under the Fifth Amendment could be grounds for a lawsuit. It’s certainly not an easy thing to do, but there is a potential remedy for some of the scenarios discussed above.

[Loach]

@Fotheringay-Phipps

To my knowledge there are no such studies, though I’ve seen a lot of cites to such purported studies. What there are are studies which show that the percentage of rape allegations which end in the accused being proved to be innocent – generally by the accuser recanting the accusation, IIRC – are low. But there are quite a lot of charges which end up as he-said-she-said situations, many of which are likely false accusations but which are not counted as such in these studies. (It would be very difficult if not impossible for any study to determine how many accusations are genuinely false.)

You didn’tlook very hard. Your opinion sounds a lot like baseless conjuncture. A lot of men “know” that women make false accusations all the time. There is no doubt that a large percentage of sexual assaults are not reported. A small percentage of accusations are false. I have dealt with a few other the years. But it is small.

@Fotheringay-Phipps

I disagree. Prosecutors who fail to prosecute cases that the public wants prosecuted will find themselves out of a job even sooner. There is a lot of political pressure to prosecute sex crimes cases, and a prosecutor who fails to prosecute such cases runs a serious risk of finding a newspaper article or media campaign alleging that he or she refused to prosecute this heinous crime against this poor poor victim due to his or her callous and/or sexist attitude. Especially if the accused later goes on to commit further crimes. Taking the risk of losing a Valiant Fight for Justice can be the smaller risk.

And even in a weak case it’s only a risk. What you do as a prosecutor in such cases is pile on the charges and go for the max and try to get the guy to settle for some lesser charge. Then you can declare victory and move on.

More conjecture. Since this is GQ I would love to see your facts. I suppose that somewhere in East Bumfuq all serious crimes get a lot of press and public attention. Certainly not here. I have been involved in many cases that had newspaper coverage. Some even serious ones don’t even get that. Little rhyme or reason to what the public latches on to. But its only a few here or there. Most cases have little or no public pressure. Most cases the public does not know about or cares about.

A weak case will still take a long time and lots of money to prosecute. In a busy court like ours that is severely discouraged. To the point that if you are wasting the county’s money you will be looking for another job. Thats not conjecture. I deal with it every day.

@Fotheringay-Phipps

There have been any number of very weak high profile cases brought up in the past few years, and while it’s probably worse in these high profile cases, when the political pressure is worse, there’s no reason to think the same dynamic is not in play in other situations, albeit on a smaller scale.

Without a cite or even a personal anecdote with your own experience there is no reason to think it is.

@Fotheringay-Phipps

It sounds like you’re talking about what the police have to do after they begin their investigation. It’s my understanding that a lot of the testimony and evidence in such cases would come from others who were involved earlier, e.g. the kid’s psychologist or pediatrician.

You can not assume that all cases are the same. Not even close. I’m sure it happens but I have never had a case that started with a psychologist or a pediatrician.

@Fotheringay-Phipps

It’s also apparent from the Sandusky case that “recovered memories” are still admissible in witness testimony. I would consider that an abuse of justice, as the average juror is probably not aware of how shaky these are.

The average juror, actually all jurors, get to hear something called cross examination. Even a bad lawyer knows how to use google and can easily find information on the controversy. Regardless, such cases are rare. I have been involved in several cases that have started with someone coming forward years later. We have never gone forward with a case based solely on one person’s memory. There needs to be more to get a conviction. And I got more.

[Acsenray]

@Fotheringay-Phipps

. . . there are quite a lot of charges which end up as he-said-she-said situations, many of which are likely false accusations. . .

And what makes you say that?

[Fotheringay-Phipps]

Common sense.

But the more important point is that even if you assume otherwise, you still can’t claim that the studies prove that very few rape accusations are false. Because that would be completely circular. Your conclusion would be resting on the assumption that it’s true - you’d be assuming that all the undetermined cases are true accusations, which is itself an assumption that there are very few false accusations.

[Fotheringay-Phipps]

@Loach

You didn’tlook very hard.

I’m sorry but you can’t just link to a Wiki article and claim that somewhere in there is a refutation of something that I’ve said. IMO that link supports my claim. What do you think shows otherwise?

More conjecture. Since this is GQ I would love to see your facts. I suppose that somewhere in East Bumfuq all serious crimes get a lot of press and public attention. Certainly not here. I have been involved in many cases that had newspaper coverage. Some even serious ones don’t even get that. Little rhyme or reason to what the public latches on to. But its only a few here or there. Most cases have little or no public pressure. Most cases the public does not know about or cares about.

What are your facts? You’ve put forth a reason for prosecutors to be reluctant to bring cases that are not strong cases. I’ve put forth a counter-reason. What do you think gives you the high ground?

Without a cite or even a personal anecdote with your own experience there is no reason to think it is.

It’s a mistake to form opinions based solely on personal anecdotes. But I’ve seen many many examples of prosecutors being accused in the local press of failing to prosecute accused criminals and/or of plea bargaining down too far (the latter also applies to judges giving light sentences), especially if the accused subsequently commits other crimes. It doesn’t take a rocket scientist to appreciate that prosecutors and judges might themselves be aware of this possibility.

You can not assume that all cases are the same. Not even close. I’m sure it happens but I have never had a case that started with a psychologist or a pediatrician.

Fortunately there’s nothing in anything I’ve written which carries an implication that all cases are the same.

The average juror, actually all jurors, get to hear something called cross examination. Even a bad lawyer knows how to use google and can easily find information on the controversy.

That’s true, but prejudicial information is excluded for a reason. (E.g. polygraphs are excluded.) When you see something that looks believable and compelling emotional testimony, some stats from the internet is not necessarily going to overcome that.

Regardless, such cases are rare. I have been involved in several cases that have started with someone coming forward years later. We have never gone forward with a case based solely on one person’s memory. There needs to be more to get a conviction. And I got more.

I know of cases that have been based on one person’s testimony.

[lawbuff]

@leadfoot

I hope this isn’t nitpicking, but I’d say that strictly speaking that’s not quite right. A cop is not immune from being sued simply because he committed a violation in the context of his work as a cop. Indeed, the very fact that he was operating under the color of law opens up the possibility that an aggrieved person could file a suit in federal court pursuant to 18 U.S.C. § 1983:

That is 42 USC not 18. Additionally, unless damages are proven only $1.00 in damages can be awarded under 1983, case law controls. They enjoy qualified immunity, so that is a burden to overcome also.

State courts are not divested of 1983 actions either, but if filed in state court it may be Petitioned to be removed.

[sweat209]

@Saint_Cad

I put this into GQ hoping there is a factual answer rather than a debate over the issues.

In previous threads we have discussed LEO use of authority an how it (intentionally or unintentionally) makes people believe they MUST cooperate with the police by answering questions. We also discussed (especially post-Salinas) the issue that while the officer may be well aware if you are a suspect or just gathering information, the person being questioned does not and therefore when the officer asks, “Did you know John Dough?” there is no way of knowing if it is an interrogation or not.

Now the magic words in these cases involve “Am I free to go?” or “Am I being detained?” The issue I’ve brought up a few times and which never seem to get answered is that the police don’t have to answer the question. Maybe Loach and pkbites can go into more detail but there are ample examples online of conversations where a person uses the magic words and the officer refuses to give a straightforward yes or no which based on the evidence I assume is legal. Maybe the lawyers on board can fill in at what point does the officer have to answer you with a yes or no.

Now for the GQ: Since we have established that the officer does not have to reply “Yes.” or “No.” when I ask “Am I free to go?” or “Am I being detained?” and can in fact continue questioning me - what would happen if instead I say “I want to speak to an attorney.”
If I’m not a suspect, can they continue questioning me?
If they continue questioning me and during the questioning I become a suspect, does my request for an attorney carry over or do I need to ask again?
If they refuse to let me speak to an attorney, can I assume that I can leave i.e. clearly I’m not being interrogated?
Is requesting an attorney ever probable cause for a search? Like if a cop pulls me over and asks to look in my trunk and I say, “No. I’d like to speak to an attorney.” can the officer use my request as suspicious behavior and now search my trunk?

From what I understand it is clear.The police can stop you or detain you for any thing.They can only search you or ask for ID if it is probable cause.Parked behide a building late at night ,parked in abandoned parking lot or parking out of place will give the police the power to search you or ask for ID .If they think you about do B&E or robbery being suspicious activity.Also coming out of dope house would be probable cause.Walking down street late at night.

The problem is some times some cops over reactive and use word suspicious activity just to search you or ask for ID.So some times there is abuse. But if you are being suspicious they can ask for ID and search you.

Any incriminate information you say to cop can be used against you.That is why they say never talk to the cops with out attorney.What they mea DO NOT incriminate information.Many times cops play the game you help me and I will help you or they try to have chat to get incriminate information from you.

[Acsenray]

Thanks for clearing that up.

[Crafter_Man]

@sweat209

From what I understand it is clear.The police can stop you or detain you for any thing.They can only search you or ask for ID if it is probable cause.

This is not correct. A LEO can only detain (but not arrest) you if at least one of the following is true:

1. The LEO has RAS you committed a crime.
2. The LEO has RAS you are currently committing a crime.
3. The LEO has RAS you are about to commit a crime.

RAS is an acronym for Reasonable Articulable Suspicion. You can think of RAS as “weak evidence.”

During detainment, which usually lasts under an hour, the LEO is trying to find good, solid evidence that you have committed, are currently committing, or are about to commit a crime. If the LEO finds solid evidence, he/she has probable cause to arrest you. If the LEO cannot turn RAS into solid evidence within an hour or so, the detainment must stop and you are free to go.

[lawbuff]

@Crafter_Man

This is not correct. A LEO can only detain (but not arrest) you if at least one of the following is true:

1. The LEO has RAS you committed a crime.
2. The LEO has RAS you are currently committing a crime.
3. The LEO has RAS you are about to commit a crime.

It can fall under other facts, as long as the seizure is “reasonable”.

[Saint_Cad]

Zombie Revival

My son took the driver’s training written test and passed. The couple he got wrong were reasonable but the one answer I was most proud of was the question on implied consent re: stop for a DUI. He put down that you do not take a BAC test until you talk to an attorney. He said it was because of what I told him about never consenting to letting an LEO search his car if they ask. I gave him a hug and explained about IC and how drunk driving was different than a cop searching a car.

[Little_Pig]

Someone help me here but I think if you don’t take a breathalyzer it is considered an admission of guilt, yes?

[Fear_Itself]

@Little_Pig

Someone help me here but I think if you don’t take a breathalyzer it is considered an admission of guilt, yes?

Only after you have been arrested. In most jurisdictions, you may decline the field breath test, as well as the field sobriety test. Once arrested, penalties attach if you decline the breathalyzer.

[Lord_Feldon]

@Little_Pig

Someone help me here but I think if you don’t take a breathalyzer it is considered an admission of guilt, yes?

No. Guilt always has to be proven.

But refusing to give a sample of your breath after an arrest is generally an administrative violation all by itself, with license suspension and backdoor fines (like three or four figure “reinstatement fees”) as a penalty. And that’s in addition to whatever you get if you’re convicted based on the other evidence.

[rbroome]

@Loach

Please talk to me.

I’m lonely.

We like to to talk to you. You’re special-someone who can explain How Things Work.
Actually, even better, How Things Really Work.

[rbroome]

@Loach

Buy whatever you want. From my point of view you are making a lot of baseless assumptions. I’ll try to answer some of them from my experience. It may look differently from the one case you were involved in. Of course any system run by and designed by humans will be flawed.

I have no idea what you mean by redundant charges. Depending on the court rules sometimes they have to spell out the lesser included charges. Sometimes it is up to the judge to tell the jury they can find the defendant guilty of a lesser charge. I find it easier to present and for the jury to understand the charges if they are all spelled out ahead of time. Sometimes that’s up to a state’s court rules, sometimes its just courtroom strategy. But there is nothing wrong with it. By statute those crimes are included in the more serious offense.

I don’t know the particulars of the case you were a juror on. But I hope you know that multiple studies have shown that the percentage of rape allegations that are false is extremely low. Whenever the subject is brought up around here there is usually a group that complains about how few of these cases are prosecuted. I try to explain how hard it can be to meet the burden of proof. Often prosecutor’s will not go forward with such a case. They are time consuming and expensive. Things are not like TV. Prosecutors try very hard to not argue a losing case. They may have felt confident of the guilt of the defendant and went forward with what they had hoping for the best. You also don’t know what happened behind the scenes. What evidence was suppressed and why. Which witnesses became uncooperative at the last minute etc. Just because you did your duty does not mean you didn’t let a rapist go free. That’s how the system is set up.

What that lawyer supposedly said to you sounds like complete bullshit to me. There is no incentive to bring losing cases to trial. For the prosecutor anyway. Its very lucrative for defense attorneys. A prosecutor who wastes the time and money of the court and the county soon find themselves out of a job. As for the 20 year old dating a 17 year old, that wouldn’t even be close to being illegal here. I know there are a few states with very screwy age of consent laws (which have been discussed here ad nauseam) but most have more thought behind them. For instance here the AoC is 16. Under 16 there has to be a 4 year age difference for there to be a problem.

When it comes to child abuse and sexual assault there were a lot of changes brought about be the hysteria of the 80s. When there is an allegation especially of sexual assault any interview of a child victim can only be done by someone trained in forensic interview techniques. The interviews must be on tape. The methods (which I have often witnessed but I am not trained in) are very specific and must be done precisely. That is to ensure that no memories are implanted or testimony tainted. Here we have what is called a Michaels Hearing or Pre-Trial Taint Hearing in which a judge determines if the police and prosecutors acted properly and did not taint the testimony of the child. No one wants their hard work to be wasted or worse, a guilty party go free, because they screwed up the interview.

I have seen absolutely no evidence of any “child abuse industry.” 99% of all cases come from reports from citizens not counselors or shrinks. Its a very good (but rare) week when I don’t have to do anything but sit back and wait for the next case.

I have no doubt things can be different from state to state. We have very strict rules governed by our own case law and attorney general guidelines. Our rules are generally stricter than what the US Supreme Court has ruled when it comes to searches, interviews etc.

Thanks!
As I said before, Loach can tell us how things really are. Unfortunately I live in a state where the civil and legal protections are far less than New Jersey, but it is good to know about best practices. At least I know what to compare to.

I don’t know how we can resolve the point of view problem. Law enforcement, even the worst ones, don’t get up in the morning hoping to railroad innocent people. But all law enforcement is exposed to real criminals all the time. It has to color their view of the people they come in contact with. Equally, the general public tends to remember negative cases, many are described here, and we forget the other 99% of the time when nothing bad happens. When we don’t even interact with law enforcement. It seems impossible that a conversation on this subject can happen where everyone can look beyond their own memories and experiences and just talk about the data. But we can keep trying!

I think we are blessed that we have law enforcement folks on board that are willing participate and enable us to understand the issues better.

[kayaker]

I have a few friends who are/were cops. They are the most strident “don’t talk to cops” advisors I know.

I have a few friends who are medical doctors. They all have advanced directives that are strongly “no life support”.

Just an observation.

[rbroome]

[quote=“Loach, post:143, topic:678886”]

You didn’tlook very hard. Your opinion sounds a lot like baseless conjuncture. A lot of men “know” that women make false accusations all the time. There is no doubt that a large percentage of sexual assaults are not reported. A small percentage of accusations are false. I have dealt with a few other the years. But it is small.

I point out that one of the first statements in the above link is:

“It is extremely difficult to assess the prevalence of false accusations.”
I didn’t find anything in the article that explained the methodology for reaching an accurate conclusion. Several references to Justice Dept. statistics and legal papers, but I didn’t see much on how the data was collected and analyzed.

This goes to both sides-those that say there are very few false accusations and those that say there are significant numbers. It is simply very hard to know one way or the other.
I do have to give a lot of credence to someone who has actual experience in the matter that covers more than one or two people. But hopefully Loach will accept that it is not a settled matter either way.

And certainly it is hard to imagine significant numbers of women knowingly falsely accusing someone of sexual assault. But I can imagine significant numbers of women taking some time to reach that conclusion. I think that what matters for intent is what people thought at the time, not the conclusions reached days or weeks or hours later.

[Really_Not_All_That_Bright]

@Little_Pig

Someone help me here but I think if you don’t take a breathalyzer it is considered an admission of guilt, yes?

It would be more accurate to say that it is an admission that you are refusing a breath test. Most states require drivers to submit to breath tests, so refusal to do so is a violation of law. However, it’s a civil infraction, not a crime, so in most jurisdictions you just lose your license for a set period.