In theory, those using the Reid Technique have ample evidence for a conviction and want the confession to make life easier. If the suspect remains silent they are toast anyways.
In reality, most cops use the Reid Technique incorrectly, without any evidence just to get a confession. If the suspect remains silent they are going to eventually be let go.
In the James Duane video forever linked to in these threads, the cop talks about a burglary suspect who he didn’t have much on but who talked himself into prison.
Also, police and prosecutors don’t have unlimited resources to pursue and prosecute cases. Prosecutors may decide not to pursue a case with strong but not ironclad evidence or may offer a better deal to the suspect. A confession makes it a slam dunk.
If the police initiate and re-engage, and the person makes statements in response to interrogation, then those statements generally cannot be used in court against the person, unless there was a sufficient break in custody before they recontacted the person.
I’m not sure of the precise answer to whether police are “breaking the law” by doing so. Miranda is generally described as a “prophylactic” rule. It’s not clear to me whether violating it would be considered a constitutional violation, or just the violation of a judicially created rule that affects the admissibility of evidence. Maybe someone else can answer.
There is also the “Pot Brothers at Law” video posted above (aka STFU Friday) and they relate the story of an illegal marijuana dispensary being busted by the police. Two of the three people there talked saying they just volunteered there and they went to jail. The third remained silent and charges were dropped.
I think the notion is that talking to the police really never helps you so don’t do it. Maybe the police have enough to put you in jail anyway but talking to them won’t change that.
Where did that idea even come from? And by “silence alone” do you mean the suspect says nothing at all to nobody, including their own lawyer and just stares out into space through the entire investigation and trial? I don’t think that happens often, and when it does would indicate some sort of mental incapacity.
Not self-incriminating one’s self helps a lot, and if it was such a non-necessary or helpful part of an investigation, then why is it attempted every time by investigators?
They are arguably violating a constitutional right. The remedy is to suppress the evidence (such as the defendant’s statements) that they obtain from use at a trial of the case. The cops would not be personally prosecuted for breaking the law.
I agree that there would be no prosecution unless this were part of a pattern of violations or accompanied by other egregious conduct, but a police officer in this circumstance could be prosecuted under federal civil rights statutes for deprivation of rights under color of law – no?
How is the person being interviewed being deprived of civil rights if the officer continues to ask questions?
If they refuse to let the person get counsel then sure. But if they keep asking questions while waiting for counsel to show up? Not seeing it. You can still remain silent. They can’t really take that from you unless we get to torturing you to compel you to speak.
I wonder if they were a really savvy criminal and had abundant faith in the system if it would be in their interest to spill the beans if the police kept questioning them after they explicitly invoked their rights. Then all of that becomes inadmissible.
That would be a dangerous play though. Might be good for a book or movie plot.
As has been said regularly - if the police keep questioning someone when they invoke their right to a lawyer, then anything they say can be (will be) invalid as evidence, as will “fruit of the poison tree” anything they learn and any additional evidence they gather as a result of what they learn.
I suppose if they keep asking and the person refuses to talk, at the least they may (IANAL) get a stern reprimand from the judge for being idiots. And having that reputation, they may be unreliable witnesses in this and future trials?
The question is - why are you arrested and being interrogated in the first place? Arrest requires reasonable suspicion, but not 100% certainty the person is guilty. If they can gather your DNA, video security footage, fingerprints, etc. - well, you’re toast. But the evidence may not be cut-and-dried, the lab may mess up, the samples may be contaminated or the fingerprints smudged or you have a valid reason for having fingerprints all over the scene, etc. etc. The prosecutor may decide the evidence is not strong enough to risk his precious conviction success ratio at trial.
The only thing talking can do is confirm that you are guilty. You can try to talk your way out of it, you may even come up with a convincing case… but as also pointed out above, if you make statements to the effect that “I’m not guilty, I didn’t do it” those carry no weight in court; but statements that you were at the scene, that you did handle the weapon or stolen goods, etc. then those will be useable. So what do you think you can say that doesn’t dig a deeper hole?
Arrest requires probable cause, which is more than reasonable suspicion.
Doh! But then, probable cause that they do have may be enough to arrest someone, but not necessarily enough to make the prosecutor confident to take it to trial.
It would be interesting to know how many people that are questioned raise themselves up to the level of probable cause just through their answers to police. I think James Duane touches on this with his quiz where he talks about nursing students being killed and the person naturally assumes women and shot. So of course if you say “her” or “shot” and they were in fact women or shot, the next thing you will hear from the cop is, “You have the right to remain silent …”
If a person is in custody and requests a lawyer I have to stop questioning them. That’s the way it is.
Where people get confused is with non-custodial interviews. If you are free to go I do not have to stop questioning you if you say you want a lawyer. And you don’t get a lawyer assigned to you if you are not under arrest. I’ve had oodles of people say during non-custodial interviews “I want a lawyer!”. We’ll, go get one.
Huh? You have to give me one.
No, no I don’t.
What about the movie cliche of the two cops having a loud conversation within the suspect’s hearing hoping to provoke him into some kind of statement? E.g. “Hey Officer Jones, did you hear that they just matched the prints on the gun to Joey over there? Wonder how that could be when he told the officer at the scene that he’s never touched a gun?”
Does that happen, and if the suspect says something would it be admissible?
A person actually has to assert their fifth amendment rights. When questioned, they actually have to say something like “I plead the fifth.” If they just sit in silence, then their silence can be taken as evidence .
Simplified explanation, by comic strip, written by a lawyer.
Relevant page. and the following one .
You should have gone another couple of pages - those pages are about testifying under a subpoena. It’s when you are testifying in response to some legal process that you “plead the Fifth” , not when being questioned by police *
These pages are about questioning by the police
* and you lose the ability to plead the Fifth if you are granted immunity since your testimony will not be used against you.
Out of curiosity, can they half-ass that? “I plead the Fifth.” “Well, then, let me now re-ask the question, after hereby granting you immunity for everything that happened that night — except murder charges.” “I still plead the Fifth.”
It often strikes me as inappropriate that someone can be convicted of lying to gov’t officials, if the gov’t has not successfully proven the offense being investigated. But I tend to think our society criminalizes too much conduct.
In my understanding, most grants of immunity do not promise that you will not be prosecuted for any acts related to your testimony ( this is called “transactional immunity”). More commonly, the government cannot use your testimony or any evidence derived from your testimony against you (" Use and derivative use immunity") but they can still prosecute you using evidence obtained independent of your testimony.
I read the James Duane book and it is even worse than this. He advises just asking for an attorney and shutting up because people got too fancy and would say things like, “I plead the Fifth so as to not incriminate myself.” and the fact they said they could incriminate themselves was used against them in court.