# "What you say can and will be used against you" -- but not for you? **URL:** \ **Category:** Factual Questions\ **Created:** [September 10, 2010, 9:29pm UTC](https://boards.straightdope.com/t/what-you-say-can-and-will-be-used-against-you-but-not-for-you/553337 "2010-09-10T21:29:31Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Patch](https://avatars.discourse-cdn.com/v4/letter/p/a183cd/32.png) [@Patch](https://boards.straightdope.com/u/Patch)\ **Post date:** [September 10, 2010, 9:29pm UTC](https://boards.straightdope.com/t/what-you-say-can-and-will-be-used-against-you-but-not-for-you/553337/1 "2010-09-10T21:29:31Z")
On a firearms forum the fun question of what to say to the police after a self defense shooting has reared its head once again. This point was brought up in the discussion: > [@](#): > > Nothing you say to police forces police to use that in your defense. Statements to Police can not be used for your defense…its hearsay. There wasn’t much dispute over this point, and I confess some confusion. How can what I say to the police be used against me, but statements in my favor, from the same conversation, can be suppressed? ---
**Author:** ![crowmanyclouds](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/crowmanyclouds/32/19884_2.png) [@crowmanyclouds](https://boards.straightdope.com/u/crowmanyclouds)\ **Post date:** [September 10, 2010, 10:20pm UTC](https://boards.straightdope.com/t/what-you-say-can-and-will-be-used-against-you-but-not-for-you/553337/2 "2010-09-10T22:20:29Z")
> [@](#): > > Declarations against interest are an exception to the rule on hearsay in which a person’s statement may be used, where generally the content of the statement is so prejudicial to the person making it that they would not have made the statement unless they believed the statement was true. …[RIGHT][CITE](http://en.wikipedia.org/wiki/Declaration_against_interest)[/RIGHT] CMC fnord! ---
**Author:** ![TheFifthYear](https://avatars.discourse-cdn.com/v4/letter/t/958977/32.png) [@TheFifthYear](https://boards.straightdope.com/u/TheFifthYear)\ **Post date:** [September 10, 2010, 11:26pm UTC](https://boards.straightdope.com/t/what-you-say-can-and-will-be-used-against-you-but-not-for-you/553337/3 "2010-09-10T23:26:29Z")
To expand, many exceptions to the hearsay rule exist for situations where even though the statement is hearsay, it is nonetheless considered reliable. You have every incentive to say things to the police that will help your defense, whether truthful or not. Thus, there is no exception to the hearsay rule for those things. However, if you say things that are against your interest, it is unlikely that you are lying, and so those statements are allowed even though they are hearsay. ---
**Author:** ![Patch](https://avatars.discourse-cdn.com/v4/letter/p/a183cd/32.png) [@Patch](https://boards.straightdope.com/u/Patch)\ **Post date:** [September 10, 2010, 11:27pm UTC](https://boards.straightdope.com/t/what-you-say-can-and-will-be-used-against-you-but-not-for-you/553337/4 "2010-09-10T23:27:14Z")
Thanks. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [September 11, 2010, 7:14am UTC](https://boards.straightdope.com/t/what-you-say-can-and-will-be-used-against-you-but-not-for-you/553337/5 "2010-09-11T07:14:31Z")
plus, if you get charged and put on trial, you have the option of testifying and repeating your earlier statements. ---
**Author:** ![Rigamarole](https://avatars.discourse-cdn.com/v4/letter/r/77aa72/32.png) [@Rigamarole](https://boards.straightdope.com/u/Rigamarole)\ **Post date:** [September 11, 2010, 7:25am UTC](https://boards.straightdope.com/t/what-you-say-can-and-will-be-used-against-you-but-not-for-you/553337/6 "2010-09-11T07:25:35Z")
Because anything you say, no matter how much you _think_ it may be in your favor, can somehow be twisted to make you look like an ass. Example. Defendant: “He charged at me, so I shot him.” Prosecutor at trial: “The defendant claimed on the scene that the man _charged_ at him, as a raging bull or a rabid dog might. Clearly, he thinks of this victim the same way he would think of an animal deserving of slaughter. Is that how little respect you have for human life, Mr. Smith, that you would compare the victim to a rabid beast that must be put down? Did you also know the victim was a father of two when you so coldly gunned him down? _Why do you hate children and puppies_?” ---
**Author:** ![ivn1188](https://avatars.discourse-cdn.com/v4/letter/i/e480ec/32.png) [@ivn1188](https://boards.straightdope.com/u/ivn1188)\ **Post date:** [September 11, 2010, 7:44am UTC](https://boards.straightdope.com/t/what-you-say-can-and-will-be-used-against-you-but-not-for-you/553337/7 "2010-09-11T07:44:21Z")
> [@Rigamarole](#): > > Because anything you say, no matter how much you _think_ it may be in your favor, can somehow be twisted to make you look like an ass. > > Example. Defendant: “He charged at me, so I shot him.” > > Prosecutor at trial: “The defendant claimed on the scene that the man _charged_ at him, as a raging bull or a rabid dog might. Clearly, he thinks of this victim the same way he would think of an animal deserving of slaughter. Is that how little respect you have for human life, Mr. Smith, that you would compare the victim to a rabid beast that must be put down? Did you also know the victim was a father of two when you so coldly gunned him down? _Why do you hate children and puppies_?” Objection, argumentative, calls for speculation, assumes facts not in evidence, and counsel seems to be testifying. ---
**Author:** ![Rigamarole](https://avatars.discourse-cdn.com/v4/letter/r/77aa72/32.png) [@Rigamarole](https://boards.straightdope.com/u/Rigamarole)\ **Post date:** [September 11, 2010, 7:47am UTC](https://boards.straightdope.com/t/what-you-say-can-and-will-be-used-against-you-but-not-for-you/553337/8 "2010-09-11T07:47:00Z")
> [@ivn1188](#): > > > [@Rigamarole](#): > > > > Because anything you say, no matter how much you _think_ it may be in your favor, can somehow be twisted to make you look like an ass. > > > > Example. Defendant: “He charged at me, so I shot him.” > > > > Prosecutor at trial: “The defendant claimed on the scene that the man _charged_ at him, as a raging bull or a rabid dog might. Clearly, he thinks of this victim the same way he would think of an animal deserving of slaughter. Is that how little respect you have for human life, Mr. Smith, that you would compare the victim to a rabid beast that must be put down? Did you also know the victim was a father of two when you so coldly gunned him down? _Why do you hate children and puppies_?” > > Objection, argumentative, calls for speculation, assumes facts not in evidence, and counsel seems to be testifying. Objection. Counsel can’t seem to take a joke. 😛 ---
**Author:** ![dzero](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@dzero](https://boards.straightdope.com/u/dzero)\ **Post date:** [September 11, 2010, 7:54am UTC](https://boards.straightdope.com/t/what-you-say-can-and-will-be-used-against-you-but-not-for-you/553337/9 "2010-09-11T07:54:39Z")
There’s also the fact that we have an adversarial system. The only obligation of the prosecution is to present the evidence against you. Therefore they want to make sure none of that evidence can be excluded. Evidence in your favor isn’t their concern - in the sense of being worried it might be excluded. I can’t recall which constitutional provisions Miranda warnings are designed to protect but presumably, at the very least it would be the right against self incrimination. Prior to Miranda I don’t think the police had any obligation to provide a warning of any kind, so I don’t think any exceptions to the hearsay rule are involved since these go back, in some cases, for centuries. ---
**Author:** ![ivn1188](https://avatars.discourse-cdn.com/v4/letter/i/e480ec/32.png) [@ivn1188](https://boards.straightdope.com/u/ivn1188)\ **Post date:** [September 11, 2010, 8:04am UTC](https://boards.straightdope.com/t/what-you-say-can-and-will-be-used-against-you-but-not-for-you/553337/10 "2010-09-11T08:04:03Z")
Unless the evidence is potentially exculpatory, in which case the prosecution is obliged to share such information with the defense. (Say, the DNA collected at the crime scene doesn’t match the accused) ---
**Author:** ![Darth\_Panda](https://avatars.discourse-cdn.com/v4/letter/d/ee7513/32.png) [@Darth\_Panda](https://boards.straightdope.com/u/Darth_Panda)\ **Post date:** [September 11, 2010, 10:59am UTC](https://boards.straightdope.com/t/what-you-say-can-and-will-be-used-against-you-but-not-for-you/553337/11 "2010-09-11T10:59:43Z")
And, to be fair, they could ‘use’ what you say for you to the degree that, based on the circumstances, your statemenet, and whatever elese, the prosecutor may decide not to bring charges. It’s obviously completely different than how the phrase is meant, but it’s not like there’s a rule against considering your statement when deciding to bring charges at all. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [September 11, 2010, 1:04pm UTC](https://boards.straightdope.com/t/what-you-say-can-and-will-be-used-against-you-but-not-for-you/553337/12 "2010-09-11T13:04:16Z")
Odds are the police have already determined there is enough evidence to lay a charge when they arrest you. Any arguments are futile and probaby should wait until your lawyer is arguing with the state over whether there is enough evidence to go to trial. (IANAL) Hearsay is third-party evidence; anyone can say what the perp, victim or anyone else told them directly. “Yes, Fred told me he recognized it was Joe and not a bull moose in his sights. Joe told me he jumped up and down and yelled ‘shoot me!’ several times.” They cannot repeat what they heard from someone else who heard it - “Sam told me Fred admitted to him that Joe was unarmed.” The prosecution (or defense) needs to produce Sam in that case. ---
**Author:** ![dzero](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@dzero](https://boards.straightdope.com/u/dzero)\ **Post date:** [September 11, 2010, 2:42pm UTC](https://boards.straightdope.com/t/what-you-say-can-and-will-be-used-against-you-but-not-for-you/553337/13 "2010-09-11T14:42:54Z")
> [@md2000](#): > > Odds are the police have already determined there is enough evidence to lay a charge when they arrest you. Any arguments are futile and probaby should wait until your lawyer is arguing with the state over whether there is enough evidence to go to trial. > > (IANAL) Hearsay is third-party evidence; anyone can say what the perp, victim or anyone else told them directly. “Yes, Fred told me he recognized it was Joe and not a bull moose in his sights. Joe told me he jumped up and down and yelled ‘shoot me!’ several times.” They cannot repeat what they heard from someone else who heard it - “Sam told me Fred admitted to him that Joe was unarmed.” The prosecution (or defense) needs to produce Sam in that case. Hearsay means repeating anything that was said to you by any party. what you describe are first and second hand hearsay. Second hand hearsay is not admissible under any circumstances - no exceptions. First hand hearsay is admissible if it falls within one of the many hearsay rule exceptions. Also, hearsay is not always speech. For example you can testify to the contents of records kept during the normal course of an ongoing and legitimate business. This is the business records exception. While there are so many hearsay exceptions, it’s understandable that one might get the impression that all first hand hearsay is admissible - but it is not. ---
**Author:** ![Darth\_Panda](https://avatars.discourse-cdn.com/v4/letter/d/ee7513/32.png) [@Darth\_Panda](https://boards.straightdope.com/u/Darth_Panda)\ **Post date:** [September 11, 2010, 3:48pm UTC](https://boards.straightdope.com/t/what-you-say-can-and-will-be-used-against-you-but-not-for-you/553337/14 "2010-09-11T15:48:36Z")
> [@md2000](#): > > Odds are the police have already determined there is enough evidence to lay a charge when they arrest you. Any arguments are futile and probaby should wait until your lawyer is arguing with the state over whether there is enough evidence to go to trial. Police don’t bring charges, prosecuters do. It’s not uncommon for police to arrest someone for several crimes and then the prosecutor will only bring some of them, for a variety of reason (thinking the police were wrong, not needing some of the charges, merger, thinking it’s just ‘silly’, thinking it won’t stick, whatever) - note that I’m talk prior to any kind of plea bargaining or the like. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [September 12, 2010, 3:45am UTC](https://boards.straightdope.com/t/what-you-say-can-and-will-be-used-against-you-but-not-for-you/553337/15 "2010-09-12T03:45:10Z")
> [@Darth\_Panda](#): > > Police don’t bring charges, prosecuters do. Depends on the jurisdiction. **md2000** posts from Canada. Here, the charges are laid by the police officers, not by the Crown prosecutors. ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [September 12, 2010, 4:42am UTC](https://boards.straightdope.com/t/what-you-say-can-and-will-be-used-against-you-but-not-for-you/553337/16 "2010-09-12T04:42:40Z")
> [@dzero](#): > > There’s also the fact that we have an adversarial system. The only obligation of the prosecution is to present the evidence against you… Sorta kinda. In the U.S., a prosecutor has an ethical duty to disclose exculpatory (i.e. good for, or helpful to, the defendant) information to defense counsel. A prosecutor’s ethical duty is to see that justice is done, not just to nail the defendant’s hide to the wall. The prosecution is not obliged to present that information as part of its case at trial, but you may assured defense counsel will. Also, if prosecutors introduce only some of the defendant’s pretrial statements during the trial (such as from the police officer who heard him say it), the defense may, on cross examination, inquire further and ask for the full statement to be provided to the jury, so that the prosecution can’t just cherry-pick the stuff that hurts the defendant. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [September 12, 2010, 4:50am UTC](https://boards.straightdope.com/t/what-you-say-can-and-will-be-used-against-you-but-not-for-you/553337/17 "2010-09-12T04:50:58Z")
The Crown’s disclosure obligation in Canada is even broader: the Crown must disclose all relevant information, not just exculpatory. Inculpatory, exculpatory, or neutral doesn’t matter - everything must be disclosed to the defence. The Crown also has a similar duty to that outlined by **Elendil’s Heir** : the Crown is not to go all out for a conviction. The Crown is required at every step of the prosecution to consider whether there are sufficient grounds to proceed. If at some point, the ongoing review indicates that there is not sufficient likelihood of a conviction, it is the Crown’s duty to stay the charge. ---
**Author:** ![dzero](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@dzero](https://boards.straightdope.com/u/dzero)\ **Post date:** [September 12, 2010, 5:23am UTC](https://boards.straightdope.com/t/what-you-say-can-and-will-be-used-against-you-but-not-for-you/553337/18 "2010-09-12T05:23:11Z")
> [@Northern\_Piper](#): > > Depends on the jurisdiction. **md2000** posts from Canada. Thanks for pointing that out and apologies to md2000 - i have to try to remember not have such US-centric orientation in these matters. I didn’t want to complicate things by getting into the duty (in the US) to disclose exculpatory evidence. I did try to word it carefully by saying “presented” (as to a jury) rather than “disclosed”. I will have to remember that we have few jurists here. 🙂 ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 12, 2010, 10:08am UTC](https://boards.straightdope.com/t/what-you-say-can-and-will-be-used-against-you-but-not-for-you/553337/19 "2010-09-12T10:08:04Z")
> [@dzero](#): > > Hearsay means repeating anything that was said to you by any party. what you describe are first and second hand hearsay. Second hand hearsay is not admissible under any circumstances - no exceptions. First hand hearsay is admissible if it falls within one of the many hearsay rule exceptions. No. Hearsay within hearsay is perfectly admissible as long as each falls within an exception. ---
**Author:** ![Darth\_Panda](https://avatars.discourse-cdn.com/v4/letter/d/ee7513/32.png) [@Darth\_Panda](https://boards.straightdope.com/u/Darth_Panda)\ **Post date:** [September 12, 2010, 1:12pm UTC](https://boards.straightdope.com/t/what-you-say-can-and-will-be-used-against-you-but-not-for-you/553337/20 "2010-09-12T13:12:44Z")
> [@Northern\_Piper](#): > > > [@Darth\_Panda](#): > > > > Police don’t bring charges, prosecuters do. > > Depends on the jurisdiction. **md2000** posts from Canada. Here, the charges are laid by the police officers, not by the Crown prosecutors. Ah, didn’t know that. Thanks. [Next page](https://boards.straightdope.com/t/what-you-say-can-and-will-be-used-against-you-but-not-for-you/553337.md?page=2)