Bennett Haselton's Response To That "Don't Talk to Cops" Video

In response to both of my previous articles raising questions about the Fifth Amendment, people sent me a link to a famous video titled "Don't Talk To Cops" delivered by Regents University law professor James Duane. Whether his conclusion is correct or not, I think the argument is flawed in several ways. Please continue reading below to see what I think is wrong with his position.

In my first article about the Fifth Amendment, I asked: Why is it a good thing that the Fifth Amendment allows a suspect to refuse to answer "Yes" or "No" as to whether they committed a crime or not? (I was emphatically not saying that a suspect should have to answer questions that are nobody else's business -- if you weren't at the scene of the crime, you should be free to say, "I wasn't at the scene of the crime, but I would prefer not to tell you where I was." However, the Fifth Amendment lets you refuse to answer the question of whether you even committed the crime at all, and I didn't see what was so great about that, because it is everybody's legitimate business whether or not you committed the crime.)

In the second article, I asked a different question: If you do accept the rationale for allowing a suspect to refuse to answer the question of whether they committed the crime or not, why don't we extend the same protection to third-party witnesses? In other words, if Bob commits a crime and Alice is a witness, and the police ask Bob and Alice the same question -- "Did Bob do it?" -- and both refuse to answer, then Bob is allowed to do this but Alice can go to jail for remaining silent, even though Bob might be guilty, and Alice is the one who is known to be innocent! That seems crazy.

The full arguments are given in each of the articles linked above (and dissected further in the comments) and I don't want to rehash either of them here, but in response to both articles, multiple people sent me the link to Professor Duane's "Don't Talk To Cops" video, which has been viewed about 2 million times on Youtube. (Professor Duane also ceded half his presentation time to police officer George Bruch, giving him the chance to offer a 'rebuttal', which has been uploaded as a separate video -- Bruch's video has been viewed about 1 million times.) I've watched Professor Duane's presentation twice, and one problem I have with the video is that I don't know what Professor Duane's actual position is. Yes, he says that he would "never talk to any police officer under any circumstances, ever", but does that really mean that if he witnessed a violent altercation on the street and the cops wanted to ask him about it, that he wouldn't say a word to them? Or, if he got pulled over for speeding, would he really hand over his license and registration and then sit silently in the driver's seat refusing to respond the cop's questions (which pretty much eliminates your chance at being let off with a warning)? What if his house got broken into, would he really refuse to call the cops and tell them? And, uh, there's a police officer who co-presents in the video with him, didn't Professor Duane have to talk to him to get him in the video? In fact, he speaks directly to the cop on camera! Busted!

"Oh, stop being so literal, Bennett, you know that's not what he meant!" OK, but what did he mean? One problem with staking out a fairly extreme position to begin with, is that if you describe it hyperbolically, there's no way for people to know what your actual position is. I emailed Professor Duane to ask if he could clarify, but didn't get a response. (Since his video has been viewed over 2 million times, possibly my email got lost in the pile of mails he gets every week saying, "Oh shit I got arrested and I opened my big mouth, you got any ideas for what I should do now??")

For the purpose of this discussion, let's assume that Professor Duane means that if the police approached him with questions about a crime (and excluding "hot pursuit" situations such as when the police are chasing a mugger and ask "Which way did he go?"), he would refuse to talk to them. In that case, I have a couple of points to make in response to the video, but first, if you haven't seen it, you may want to watch it now, along with the 'rebuttal' offered by police officer George Bruch, and see if you come up with the same objections that I did.

Everybody back? OK, here are my thoughts:

1. The video is answering a different question from the one I asked. The video weighs the costs and benefits to the individual, of remaining silent; I was asking whether the defendant's right to remain silent is good for society as a whole. Of course if you're innocent, then it's in both your interest and society's interest for you to go free. If you're guilty, on the other hand, you may want to walk free, but it's usually in your society's interest for you to be convicted. (You could argue an exception for pot laws or whatever, but generally speaking, we do want criminals to get caught.)

Professor Duane, beginning at the 24:50 mark, specifically invokes Martha Stewart, Marion Jones, and Michael Vick, as examples of people who he thinks would have gotten lighter sentences, or gotten off completely, if they had remained silent throughout their legal ordeals. Yes, but all three of those people were guilty (Martha Stewart, very probably; Jones and Vick, beyond any doubt), so while it may have been better for them to remain silent, it would not have been better for the legal system as a whole. (All three of them had supporters who said the laws they were being charged under, were unjust in the first place, but that's a separate problem.)

This is not an explicit error on Professor Duane's part -- since he was arguing that remaining silent is good for the individual, not for society -- but it does mean the video is not precisely a response to the point I was making.

2. The argument about the danger of talking to cops is based on a sampling error. Professor Duane says that criminal defense attorneys "always, always say it was a bad idea for their client to talk to the police". But this sample obviously only includes people who talked to the police and ended up getting arrested, and charged, and needing a criminal defense attorney. The sample wouldn't include anyone that the police talked to and decided not to arrest -- whether they were initially brought in as a suspect but then convinced the police that they were innocent, or whether they were simply third-party witnesses who volunteered information to the police that they thought was useful.

In fact, in the 'rebuttal' video from Officer Bruch, he says at the 6:20 mark:

"You're going to lose [in the police interrogation room], unless you're purely innocent. On the other side of it, I don't want to put anyone who's innocent in jail. I try not to bring anyone in to the interview room who's innocent. And there are a couple that I have let walk away because they were innocent."

This appears to contradict Professor Duane, who said repeatedly that even if you're innocent, "it CANNOT help" to talk to the police, and that "you CANNOT talk to the police out of arresting you". Unless Bruch was lying, then Duane's statement was wrong, although neither of them seemed to notice. But if you did talk the police out of arresting you, then you wouldn't end up in Professor Duane's sample of people whose ended up needing a defense lawyer.

And even this sample is restricted to people who are brought into the interrogation room, where Officer Bruch said he tried not to bring anybody in at all unless the thought they were probably guilty. If you include all the people that the cops try and talk to, who the police don't think are guilty -- people casually stopped on the street, or called on the phone, or visited in their house, because they might have relevant information -- then your sample becomes much larger, and the proportion who talk to the cops and do not subsequently get in trouble, goes way up.

Also, of course, Professor Duane's sample includes people who talked to the police and were convicted, who were in fact guilty. Their defense attorneys may wish that their clients had kept silent and possibly walked free as a result, but that wouldn't be good for the rest of us.

3. His advice ignores the benefits of leniency if you're guilty and you're almost positive you'll be caught anyway. For most of this discussion I've been focusing on the merits of talking to the police if you're innocent. But Officer Bruch also says that if people in the interrogation room answer questions and cooperate, then even if they're ultimately convicted, the police do testify to the judge that you were cooperative, and the judge can take that into account and reduce your prison sentence. That is at least theoretically another legitimate reason to violate Professor Duane's "Don't Talk To Cops" rule, if you're 99% sure that the police will find enough evidence to convict you anyway, you can hope for leniency by cooperating. That's essentially why I do talk to the police if I get pulled over for speeding -- I've gotten off with a warning a few times, whereas I'm pretty sure that if I'd just sat silently and stared straight ahead, I would have gotten the ticket.

4. Professor Duane's argument is about talking to the cops; I'm asking about the merits of the Fifth Amendment as it applies in a courtroom as well. At the 15:22 mark, for example, Professor Duane gives the fictional example of a suspect who says to the police:

"I don't know what you are talking about. I didn't kill Jones and I don't know who did. I wasn't anywhere near that place. I don't have a gun, and I have never owned a gun in my life. I don't even know how to use a gun. Yeah, sure I never liked the guy, but who did? I wouldn't kill him. I've never hurt anybody in my life, and I would never do such a thing."

Professor Duane continues: "Let's suppose every word of that is true, 100% of it is true. What will the jury hear at trial? 'Officer Bruch, was there anything about your interrogation, your interview with the suspect that made you concerned that he might be the right one?' 'Yes sir there was. He confessed to me that He never liked the guy.'"

Even if that scenario is a valid reason not to talk to the police, it wouldn't be possible in a courtroom, where all of your answers are recorded, and it will be obvious if someone is trying to distort the meaning of something that you said earlier.

This is also not an error on Professor Duane's part, since his talk was called "Don't Talk To Cops", not "Don't Ever Answer Questions In Court". (While he's right that most criminal defense attorneys wish that their clients had not talked to the police, some criminal defense attorneys do encourage their clients to take the stand at trial.) So it's not relevant to the question of whether society benefits from giving defendants a Fifth Amendment right to remain silent in a courtroom.

5. Finally, are the police really that corrupt and/or stupid? Go back up to Professor Duane's hypothetical in which a suspect protests his innocence, and Duane imagines that Officer Bruch -- Professor Duane's real-life co-presenter in this talk! -- takes five words out of context and testifies in court, "He confessed to me, 'I never liked the guy'."

When the real Officer Bruch gave his 'rebuttal', he started out by started out by saying, "Everything he just said was true. And it was right, and it was correct." If I had been in the room at the time, I would have asked him, "Seriously? Were you listening when Professor Duane said that if a suspect protested his innocence in the way that he described, you would take that out-of-context quote and only tell the jury that he said 'I never liked the guy?'" Well, we already know that George Bruch didn't really agree with everything that Professor Duane said, since Bruch contradicted him on some points, such as Duane's claim that "talking to the police cannot possibly help you even if you're innocent". But I would have liked for Officer Bruch to say if he thinks the police are anywhere as stupid and corrupt as Professor Duane was implying that they are.

More to the point -- and I went into this in my first article about the Fifth Amendment -- if the police and the courts are even remotely that corrupt and incompetent, then that's a wide-ranging problem that applies to all types of evidence gathered in the case, not just statements from suspect. And if that's the case, then the Fifth Amendment is just a band-aid that only solves the stupid-cops-and-courts problem as it applies to suspect statements specifically. It doesn't solve the problem as it applies to circumstantial evidence, unreliable eyewitness testimony, false memories, evaluating the credibility of other witnesses, and other factors.

In other words, if you're arrested, suppose the cops really are so dumb and/or evil that they would quote your "I never liked the guy" out of context to try and get you convicted. So, taking Professor Duane's advice, you say nothing. Do you still trust those same police officers to handle the other aspects of your case fairly? To make sure any exculpatory evidence is brought to light? To interrogate other witnesses without leading them towards a pre-set conclusion?

As I said in my first article, that doesn't mean that this is not a valid argument for the Fifth Amendment. But it means that if this is the primary argument in favor of the Fifth Amendment, then what the people making this argument are really saying, is that the whole system is broken.

The Weekly Standard published a more devastating rebuttal to Professor Duane's video, in which the author describes the devastating effects that the "Don't Snitch" movement has had on high-crime neighborhoods, as a result of large numbers of people following Professor Duane's philosophy to the letter. The article quoted one rap celebrity saying that he wouldn't even tell the police about a known murderer living next door to him. Professor Duane may not endorse that view directly, but he could hardly disagree that it follows logically from his admonition to "never talk to the police under any circumstances, ever". This is essentially the same logic error that I pointed out in point #2 -- if you focus only on people who talked to the police and ended up getting arrested, you're ignoring the benefits of people talking to the police who not only don't get arrested, but may help stop a crime or catch a criminal. It might still be a bad idea on balance to talk the police, but you couldn't make that argument by limiting your sample to the people who get arrested.

More generally, there may be an argument why either the individual or society benefits from the legal right to remain silent -- but it would have to be based on a sample drawn from all innocent people who talk to the cops, and the proportion who subsequently benefit as a result, and the proportion who are subsequently penalized, and weighing the magnitude of the benefits versus the drawbacks, and the likelihood of each. The "Don't Talk To Cops" video doesn't do that.

Comments

Shoot first

[suso]

Given recent events, you'd be lucky if you even had a chance to open your mouth.

Re:Shoot first

[sjwt]

The real question here is...

Why is Slashdot publishing legal advice given by someone with a master's degree in mathematics that contradicts the advice given by a law professor?

This is as bad as news.com.au having a front page artical today, that was about fastfood and it was just a collection of Reddit quotes, and most if not all where from Americans...

It seems reporting is dead, and so to is the last drop of common sense the upvotes and editors have.

Re:Shoot first

[jeffmflanagan]

Good point. What's next, an economist claiming that evolution is a lie from the pits of hell?

Educated professionals often function very poorly outside their knowledge-domain, and due to a lifetime of considering themselves to be smart people, assume they're competent where they are not.

Re:Shoot first

[PoliTech]

"Finally, are the police really that corrupt and/or stupid?" Yes, and for anyone who says that corrupt and/or stupid cops are a small minority, remember that the so-called "Honest" cops know about that corrupt and/or stupid cop and will almost always provide cover for him/her. Complicit and accessory. It doesn't surprise me one bit that a member of the police would advise people to ignore their fifth amendment rights. It does surprise me that this fascist nonsense was posted as a serious article on /. of all places. Parent modded down as troll should be corrected. Its not like there aren't constant reports and videos of cops abusing their authority.

Re:Shoot first

[PoliTech]

I think it was more of a reference to things like This, this, this, this, and this.

Re:Shoot first

[nomadic]

As a Slashdot reader since 1999, I can assure you that the Slashdot editors have a long and stories history of making the strangest decisions as to who is an "expert" in the field they want written about (Jon Katz anyone?).

As a licensed attorney since 2006, I can also assure you that Bennett Haselton always gets the law wrong at a deep, fundamental level. I used to post explanations of where he went wrong on his stories but then I just gave up.

Re: Shoot first

[JWW]

His opinion is dangerous. ANY argument based on the concept "it's good for the whole of society for this individual to cede his rights" is just plain evil. If that end justifies the means, then you are a short way away from handing the authorities a police state.

Police and Judges.

[nospam007]

"Did Bob do it?" -- and both refuse to answer, then Bob is allowed to do this but Alice can go to jail for remaining silent, even though Bob might be guilty, and Alice is the one who is known to be innocent! That seems crazy. "

You are mixing police and justice.
Both Bob and Alice should not be talking to the police.
Then the chances that one of them will be accused is much slimmer.
Not talking to the police is allowed, not service as a witness before a judge not.

" It might still be a bad idea on balance to talk the police, but you couldn't make that argument by limiting your sample to the people who get arrested. "

If you don't talk to the police, chances are great that you will never be arrested and put before a judge, rightfully so or not.
Ask Martha, she went to jail for lying to the police, that's always the risk, even if you escape being punished for the real alleged crime.

That was kind of his point, which you seem to have missed entirely.

Re:Police and Judges.

[lister king of smeg]

More to the point if you the original video say to not answer any questions until you have your legal representation present. This guy seems to think that is bad for justice some how not to wait until your attorney to be present.

Re:Police and Judges.

[MisterSquid]

What's really boneheaded about this rebuttal is that people who speak to the police provide material with which they can be convicted. Making a mistake when speaking to the police, which all of us do even under the most relaxed conditions, is called "lying" and is a felony in and of itself. In other words, misremembering something and telling the police about it is a felony.

For my money, I will take the advice of every defense attorney who has spoken on whether one should talk to police which is DO NOT TALK TO THE POLICE WITHOUT THE PRESENCE OF YOUR ATTORNEY.

Re:Police and Judges.

[anagama]

What's really scary about this rebuttal is the proposition that people should not have 5th amendment protections. Just how much more obvious does it have to be that we are falling into a police state/authoritarian mindset at an amazingly fast pace -- the very idea that this is up for debate is shocking. And worse, the author does so without even a remote sense of shame or embarrassment.

Re:Police and Judges.

[operagost]

I'm appalled that someone would write such a lengthy article about rights without cracking a history book to find out where the 5th amendment came from. In common law, confessions via torture were admissible. Even when torture was outlawed, it continued to be done in secret as defendants could still be compelled to testify against themselves. The only way to rectify this to a great degree is to give the defendant the option of remaining silent. This way, if he is coerced and thus blabs to avoid torture, it will raise questions. The small potential benefit to the prosecution is not worth the high risk of being caught torturing people.

Re:Police and Judges.

[Montezumaa]

You're incorrect in your belief that unintentionally providing incorrect information to police, in a criminal matter(one can legally lie to the police all day, if it isn't in the course of their "official duties" and one isn't being questioned in the course of an investigation or other "official matter". Outside of "official duties", law enforcement officials are just regular members of society. The caveat to that is if your lie causes law enforcement to bring charges against a person that didn't commit the alleged criminal act, that lie is also a crime.), is a crime. Providing false information to law enforcement requires "intent", yet you falsely claim that "making a mistake"(whereas a "mistake" implies one did wrong unintentionally) is sufficient is endure the punishment of a felonious act. You couldn't be more wrong.

As an ex-law enforcement officer myself, I can tell you that Bennett Haselton is an idiot(and completely wrong, too), and you, MisterSquid, while most likely well intentioned(I hope so, at least), are also wrong. I should also point out that intentionally providing false information to law enforcement, in all circumstances, isn't a felony, in all jurisdictions. Case in point, in Georgia, according to O.C.G.A. 16-10-25, providing false identifying information to law enforcement is a misdemeanor, and it also requires "intent".

I will hold one caveat to my view of your information, in that the "super cool" all caps "DO NOT TALK TO THE POLICE WITHOUT THE PRESENCE OF YOUR ATTORNEY" comment is correct, though, with a slight alteration, or two. It is: Do not talk to the police.

Most, if not all, defense attorneys will forcefully suggest that course of action. The only time that might not be true is when there is strong evidence that the targeted suspect is innocent, or at least not guilty of the criminal act(s) in question, and that another person is. One can never "talk" his or her way out of suspicion, but substantial evidence can help move the focused suspicion onto someone else.

I do believe that one area of lying is left out(which I commented on earlier in this post), and it is equally important. If one lie to law enforcement, and that lie causes the arrest and conviction(thought conviction is necessary to bring charges for the lie(s)) of a person that isn't guilty of the crimes at issue, the liar(or liars) has committed a criminal act. If it is to the police, usually the crime is the filing of a false report to the police. If one lies on the stand, in court, it would be perjury, both of which also require "intent".

All of this hinges upon "intent", which a "mistake" doesn't hold.

Silly.

[Anonymous Coward]

Even the first point was silly, as it presumes that authority figures are perfect angels. Looks like someone doesn't understand the fifth amendment...

Re:Silly.

[Peristaltic]

Bennett sounds like he has the luxury of time in a quiet, relatively stress-free environment to calculate hazard ratios and probabilities, unlike most people thrown with little warning into a possibly contentious interrogation.

To be honest, he comes off sounding like a hair-splitting idealist.

As unlikely as it might be, If I ever find myself having to deal with US authorities in a situation involving a criminal case, I think that I'll follow Professor Duane's advice.

By the way, who is this guy that gets to editorialize on Slashdot? Are the Dice suits trying to liven things up?

Re:Silly.

[JaredOfEuropa]

The Weekly Standard published a more devastating rebuttal to Professor Duane's video, in which the author describes the devastating effects that the "Don't Snitch" movement has had on high-crime neighborhoods, as a result of large numbers of people following Professor Duane's philosophy to the letter

How is that even a rebuttal? The devastating effects are the result of criminals, not of Prof. Duane's position, and it in no way invalidates his statement. If the police want people to talk to them, they need to make very, very sure that innocent people truly have nothing to fear from them. A lot of people probably follow his advise because it it necessary.

Re:Silly.

[Entropius]

"they need to make very, very sure that innocent people truly have nothing to fear from them. A lot of people probably follow his advise because it it necessary."

This is exactly it. If the police want to make it easier to investigate real crime then they need to make innocent people comfortable around them. Cut the overzealous traffic enforcement and drug war.

Re:Silly.

[ShanghaiBill]

They did make that show, it was called "The Shield".

"The Shield" was based on the Rampart CRASH unit, and many of the events in the show were based on things that had happened in real life. Anyone who thinks we don't need a 5th Amendment because we can trust the police is an idiot.

Re:Silly.

[asmkm22]

Who exactly is Bennett Haselton, and why should I consider his opinion on this? He really just sounds like some random guy at a bar giving relationship advice.

How much did it cost

[Anonymous Coward]

How much did Bennett Haselton have to pay Dice Media to be allowed to post his comments above the big green line, instead of down here with us proles?

Re:How much did it cost

[u38cg]

And why does anyone think the musings of some random asshole are better informed than an actual, y'know, law professor?

Martha Stewart

[stoolpigeon]

Why did Martha Steward go to jail?

If someone with that kind of money and influence can do time just for talking to cops - what do you think that means for the rest of us?

Re:Martha Stewart

[Austrian Anarchy]

Why did Martha Steward go to jail?

If someone with that kind of money and influence can do time just for talking to cops - what do you think that means for the rest of us?

She went to jail for answering a question from a federal cop incorrectly. She was asked if she made money off of an investment and said "no," when in fact she did make money off of the investment. Even though there was no criminality on her part with the investment to begin with. It is right up there with going to jail because a cop asks you if the sky is blue and you give any answer at all.

Not "News for Nerds"

[Anonymous Coward]

Why does Slashdot feel compelled to let itself be Bennett Haselton's personal political soapbox?

Re:Not "News for Nerds"

[RogueyWon]

I've no idea what's been going on with slashdot for the last 6 months or so. I've seen perfectly reasonable science, IT and gaming submissions rejected, while the general drift seems to be towards "the crazier the submission the better".

There's been a big increase in accepted submissions which are inexplicable without prior knowledge of the issue (and without a useful article to elaborate), viciously partisan or, alternatively, huge walls of text devioid of formatting.

Something's gone badly wrong.

Re:Not "News for Nerds"

[CanHasDIY]

Sometimes Slashdot editors troll. They know that lots of readers like to argue, and that some like to argue so much, they'll argue with Bennett.

There's no arguing with this particular brand of stupid.

Who is Bennett Haselton . . .

[Anonymous Coward]

and why should I care about his take on this?

Remember kids...

[Lumpy]

"Anything you say CAN and WILL be used against you in a court of law."

This alone invalidates EVERYTHING said in this article.

Police look at every single civilian as an enemy first. Remember that.

Who is this guy?

[Anonymous Coward]

Bennett Haselton is not a lawyer, a judge, or a cop. He has a degree in mathematics and is a computer professional. Why on earth should I be interested in his opinion on this topic?

Re:Who is this guy?

[CanHasDIY]

Bennett Haselton is not a lawyer, a judge, or a cop. He has a degree in mathematics and is a computer professional.

... and, apparently, so shitty at what he does professionally that he has the time to write novels on topics of law he obviously does not understand.

Nothing about this guy says, "I am someone worth paying attention to." Nothing.

Fundamentally flawed

[ziggy_az]

You must not have watched the entire video. The advice is "Don't talk to the cops without an attorney". There is always time later to confess, but the fundamental reality of our criminal justice system is that it is a bargaining table. A suspect who gives up everything they have to bargain with at the very beginning is ultimately unable to win a fair sentence. Again, the U.S. Criminal Justice system is a bargaining table. Lawyers know this. Judges know this. Pretty much all legal professionals know this. Therefor, don't talk to the cops *without a lawyer*.

Who?

[luckymutt]

So who the fuck is Bennett Haselton? More importantly, why do we keep getting front page items about this one guy not understanding the basics of the Constitution? Sure it's a Monday, but why does anyone care about this turd arguing against something he clearly doesn't understand?

He is at odd with all the lawyers I know

[Austrian Anarchy]

From the seasoned defense attorney I know socially, to my son the new lawyer, his fiancée the newer lawyer, family friend the even newer lawyer, to all of the lawyers I have ever hired, they all say "Don't talk to the cops!" They even have a checklist for when the cops talk to you:
1. "I don't want to talk to you."
2. "Am I free to go?"
3. "I want a lawyer."

About talking to cops and the fifth ammendment

[vivaoporto]

About talking to cops and the fifth ammendment, it is a good thing you have there in America, the right to remain silent is one of the few thin lines that separates your country from situations like this

Yet "police throughout [Iraq] continued to use abusive and coerced confessions as methods of investigations," the State Department cites in its latest report, adding, "Credible accounts of abuse and torture during arrest and investigation, in pretrial detention, and after conviction, particularly by police and army were common." The State Department says former prisoners, detainees and human rights groups detail methods including "stress positions, beatings, broken fingers, electric shocks, suffocation, burning, removal of fingernails, suspension from the ceiling, overextending the spine, beatings on the soles of the feet with plastic and metal rods, forcing victims to drink large quantities of water then preventing urination, sexual assault, denial of medical treatment, and death threats."

Confessions have long been a deliberate element in Iraqi justice, both before and after Saddam's rule. The justice system, based largely on Islamic and tribal tradition, has always placed the importance of confessions above other types of considered evidence. Here, it's called the Master of the Evidence, similar to the Latin phrase Confession est regina probationum, or "Confession is the queen of proofs," which justified the use of forced confessions during the Middle Ages.

Denying the state the incentive of extracting a confession "by any means necessary" is one of the best gifts your founding fathers left for you. Removing that safeguard from your justice system will certainly be detrimental. You may think it will never be used against the innocent but one should never forget the famous quotation by H. L. Mencken:

The trouble with fighting for human freedom is that one spends most of one's time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all.

Cops assume guilt

[boristdog]

Back when I worked IT for a state office I had to report all missing property (usually computer equipment/parts) to the cops. Why? I wondered about it until the first couple times I did it, then I knew why: The cops ALWAYS assume whoever reports the crime was the one who committed the crime.

Every time I reported something missing I would get pulled into an empty room and literally given the third degree, light in the face and everything. I would be quizzed about my debts, my expenses, my family problems, my drinking/gambling habits, etc. I wold be left in the room alone for 30-40 minutes at a time while I was watched from outside. Sometimes several cops (possibly "detectives") would question me rapid-fire at the same time. It was like they learned to be cops from a TV show.

So why was I picked to report? Because I was the whitest, most innocent-looking person in the IT department. My boss was black, most of my co-workers were also black, asian or hispanic, some were of middle-eastern or persian descent. I'm sure the cops (all middle-aged white guys) went far easier on me than they would have on my co-workers. But they still tried like hell to pin every crime I reported on me.

So even as a super-clean, upstanding-citizen-type white guy I learned: DO NOT TALK TO COPS.

8th sign of the apocolypse

[sunking2]

Wishing for the days of Jon Katz submissions.

Re:Who is Mr. Haselton? Why should I care?

[Anonymous Coward]

Bennett talks quite a bit about society's interest

That's a clue right there. When a person trots out the "interest of society" line, it almost certainly means they are trying to justify something which is bad for the individual (i.e. an attack on individual rights). After all, if it wasn't something bad for the individual, they wouldn't need to justify it in the name of "society".

Why we have a 5th Amendment

[duckintheface]

The British shot people too. The reason we have a protection against self incrimination is the history of American colonists being forced by the British to confess to crimes they didn't commit. Many law enforcement personnel attempt to do this constantly. To them it is a game and they win if you confess. Truth plays no role.

From the article: "would he really hand over his license and registration and then sit silently in the driver's seat refusing to respond the cop's questions (which pretty much eliminates your chance at being let off with a warning)? "

Right there you admit that the police will act differently toward silent citizens even if those citizens have every right to remain silent. THAT is the problem. That is coercion and it happens as a routine part of current policing.

Re:Why we have a 5th Amendment

[Aryden]

"Do you know why I pulled you over?" is an attempt at getting you to admit guilt in the first interaction.

Re: Why we have a 5th Amendment

[Anonymous Coward]

It's trying to get you to admit guilt to other crimes. I was a cop for 5 years. It's amazing what people will tell you

Broken tail light.

Do you know why I pulled you over?

Yeah.. It's because of the crack I have in my trunk.

Re:Why we have a 5th Amendment

[JWSmythe]

I've had a few officers *very* upset with me, because I simply answer "no sir." I don't know if his radar gun incorrectly showed me doing 1,000 mph, or I had a burned out taillight, or whatever.

Was I doing 57 in a 55 zone? If I said that, he'd ticket me on the spontaneous confession.

If I said, "because you know I have 10 kilos of cocaine in the trunk", you can be sure it would become a felony stop, and I'll become rather familiar with the asphalt while officers search the car.

If it becomes something, my defense attorney will want to know that I said nothing.. Nothing is easier to defend than a spontaneous confession.

They've become very upset. One actually got me out of the car, searched me, and told me I was going to jail. He then said, "Just say why I pulled you over, and this will be easier on you. Do you know why I pulled you over?" I responded "no sir." Because he couldn't coerce a spontaneous confession for a crime that didn't exist, he couldn't charge me. He finally said that he thought I was speeding, but he wasn't sure. He said it looked like I was flying past other cars like they were stopped. In fact, the other cars were almost stopped in the lane exiting, and I was on the lane continuing through. So his recollection was correct, I was going faster than some other cars. His assertion, and what he wanted to charge me with, was incorrect.

He gave up, and we went into small talk. He asked what I did for work. There's no harm in that one, unless I answered "drug dealer" or "freelance assassin". He asked where I lived, so I referred him to my drivers license address. That was a trick question. If I said anything but what it said on my license, that's a civil infraction here. He told me a bit about himself, which I thought was odd, but I let him talk. Then he finally let me go, as I wasn't answering anything.

Now, if you didn't know the address thing, and you gave an address different than your license, you'd be cited for the infraction. That's one of those harms in talking to them.

Re:Why we have a 5th Amendment

[reve_etrange]

Good work.

The number one reason not to talk to the police has nothing to do with the Fifth Amendment. It's that while "anything you say can be used against you" nothing you say can be used for your benefit in court. No matter how much the police officer may wish to testify that information you gave him leads him to believe you are innocent, he is expressly prohibited from doing so.

Re:Why we have a 5th Amendment

[reve_etrange]

You missed the point. Evidence rules explicitly prohibit the use of anything you have told the police on your own behalf. Therefore talking to the police can at best do no harm, and at worst do much harm.

Re:Why we have a 5th Amendment

[Aryden]

You fail to remember that it was not just Prof. Duane, but also a police detective that stood up there and told everyone the exact same thing.

2. The argument about the danger of talking to cops is based on a sampling error. Professor Duane says that criminal defense attorneys "always, always say it was a bad idea for their client to talk to the police". But this sample obviously only includes people who talked to the police and ended up getting arrested, and charged, and needing a criminal defense attorney. The sample wouldn't include anyone that the police talked to and decided not to arrest -- whether they were initially brought in as a suspect but then convinced the police that they were innocent, or whether they were simply third-party witnesses who volunteered information to the police that they thought was useful.

Of the many, many, many attorneys that I know (many of whom are family/friends/etc) and the many cops that I know (former military turned police), they will all tell you the exact same thing. It CANNOT help you to talk to the police, even if you are innocent of the crime you are being questioned about. They both even tell you quite specifically that even though you may be innocent of the crime you are being questioned about, you may, without realizing it, incriminate yourself in an unrelated crime

His advice ignores the benefits of leniency if you're guilty and you're almost positive you'll be caught anyway. For most of this discussion I've been focusing on the merits of talking to the police if you're innocent. But Officer Bruch also says that if people in the interrogation room answer questions and cooperate, then even if they're ultimately convicted, the police do testify to the judge that you were cooperative, and the judge can take that into account and reduce your prison sentence. That is at least theoretically another legitimate reason to violate Professor Duane's "Don't Talk To Cops" rule, if you're 99% sure that the police will find enough evidence to convict you anyway, you can hope for leniency by cooperating. That's essentially why I do talk to the police if I get pulled over for speeding -- I've gotten off with a warning a few times, whereas I'm pretty sure that if I'd just sat silently and stared straight ahead, I would have gotten the ticket.

This is where your lack of legal knowledge truly shows through. Just because YOU may be positive that the police will find enough evidence that you are guilty does NOT mean that they gathered the evidence legally, that the evidence is NOT circumstantial, or that the evidence could also point at someone else. Even if you are guilty, and you know they are going to find out, a lawyer can help to mitigate the punishment or possible have you acquitted due to many many many loopholes and legalities that you as a layman may not know.

Professor Duane's argument is about talking to the cops; I'm asking about the merits of the Fifth Amendment as it applies in a courtroom as well. At the 15:22 mark, for example, Professor Duane gives the fictional example of a suspect who says to the police: "I don't know what you are talking about. I didn't kill Jones and I don't know who did. I wasn't anywhere near that place. I don't have a gun, and I have never owned a gun in my life. I don't even know how to use a gun. Yeah, sure I never liked the guy, but who did? I wouldn't kill him. I've never hurt anybody in my life, and I would never do such a thing." Professor Duane continues: "Let's suppose every word of that is true, 100% of it is true. What will the jury hear at trial? 'Officer Bruch, was there anything about your interrogation, your interview with the suspect that made you concerned that he might be the right one?' 'Yes sir there was. He confessed to me that He never liked the guy.'" Even if that scenario is a valid reason not to talk to the police, it wouldn't be possible in a courtroom, where all of your answers are recorded, and it will be obvious

My thought exactly

[The Last Gunslinger]

Then I read his article and had my answer: a pedantic nitwit who lacks the historical understanding of corrupt power.

The 5th Amendment, as with the others in the "Bill of Rights," was designed with the intent to guarantee an individual's liberty against encroachment by the State. The genesis arose from the Crown's ignoble history of coercing confessions under torture and duress, then using said confession as the centerpiece in some mummer's farce of a trial to imprison or execute the persons.

To examine such a precept through the lens of its utilitarian value to broader society is to fail completely to understand at all its reason for being. If we are to do so, then the author must accept that the consequences of abolishing the 5th will likely include a further degradation of our society into an authoritarian police state that will compel and coerce confessions from citizens. We need look no further than Abu Ghraib to see the truth in this. In this light, it's very simple to make the argument that the 5th Amendment is one of the essential protections that maintains ours as a "free" society.

Furthermore, it's been well-established that eyewitness and other human testimonials are consistently the least reliable evidence allowed at trials. Frankly, that we still allow for them to be used as the sole basis for indictment and conviction in this modern era of the NSA and forensic science baffles the rational mind.

You're an idiot

[Lithdren]

This guy is known for running a website that supports the First Amendment but he argues that the Fifth is a a detriment to society?

So you have the right to openly and freely speak your mind, but you dont have the right to NOT openly and freely speak your mind? Could you please cite some arguments on how these two views dont completly contradict one another?

Or are you just speaking out your back end? I'll simply asume you're wrong until you speak to me directly about it, because clearly by choosing not to speak you are admiting I am correct. See how that works?